Sabelko v. City of Phoenix

68 F.3d 1169, 95 Cal. Daily Op. Serv. 8189
Court of Appeals for the Ninth Circuit·Decided October 19, 1995·No. No. 94-15495·Published·Cited by 6 cases

Opinions

SCHROEDER, Circuit Judge:

In response to rising protest around abortion clinics in Phoenix, Arizona, the City Council in November of 1993 passed an ordinance regulating the conduct of demonstrators in public areas within 100 feet of health care facilities. Known as the Phoenix “bubble” ordinance, the law makes illegal a demonstrator’s failure to honor a person’s “clearly communicated request” to withdraw to a distance of eight feet from the person if the demonstrator is in a public area within 100 feet of a health care facility.1

Six days after Phoenix enacted the ordinance, plaintiffs Katherine Sabelko and Nancy Barto filed suit in federal court pursuant to 42 U.S.C. § 1983 seeking declaratory and injunctive relief against the City on the ground that the ordinance violated their First Amendment rights. The plaintiffs describe themselves as antiabortion sidewalk counselors who distribute literature in front of Phoenix clinics and attempt to engage others in peaceful conversation about alternatives to abortion.

The district court granted the injunction and the city now appeals. Appearing amici [1171]*1171curiae in this action in support of the City are Planned Parenthood of Central and Northern Arizona, Inc. and the City of San Jose writing on behalf of 32 other California cities. In support of the plaintiffs-appellees is amicus Arizona Civil Liberties Union (AzCLU).

The District Court Decision

The district court’s preliminary injunction preventing enforcement of the ordinance rested upon no disputed issues of fact. The district court ruled as a matter of law that the ordinance violates the First Amendment, and all issues on appeal to this court are presented for our de novo review.

The district court ruled the ordinance unconstitutional on four principal grounds which we summarize as follows:

1. Because the ordinance regulates “protest,” but not supportive speech, and because it gives private citizens the authority to silence speech, the district court ruled that it was viewpoint discriminatory.2
2. The court ruled the ordinance over-broad because, in the district court’s view, it effectively bans handbilling within the 100-foot area.
3. Ruling the ordinance vague, the district court found insufficiently clear meaning in the phrases “clearly communicated request” to withdraw and “demonstration activity.”
4. Finally, the district court rejected any analogy between the privacy interest infringed by demonstration activity targeting a home, as recognized in Frisby v. Schultz, 487 U.S. 474, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988), and that affected by activity targeting a health care facility. The district court held that the principles applicable to free speech in a public forum as enunciated in Perry Education Ass’n. v. Perry Local Educators’ Ass’n., 460 U.S. 37, 45, 103 S.Ct. 948, 955, 74 L.Ed.2d 794 (1983), control demonstration activity outside health care facilities.

The Madsen Decision

The district court’s injunction was entered on February 11,1994. The Supreme Court’s subsequent decision in Madsen v. Women’s Health Center, Inc., — U.S. -, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994), guides our review and controls our opinion today.

In Madsen, the Supreme Court considered the validity under the First Amendment of a Florida state court injunction against named individual antiabortion protesters and persons acting in concert with them. The Court upheld the establishment of a 36-foot “buffer zone” around an abortion clinic in Melbourne, Florida. Within the buffer zone, the defendants were prohibited from demonstration activity of virtually any kind. The Supreme Court ruled that the injunction was content neutral despite the fact that it targeted only abortion protesters.

We can find no basis for holding the Phoenix ordinance less content neutral than the Florida injunction. That injunction prohibited the defendants from “congregating, picketing, patrolling, demonstrating or entering” within 36 feet of the clinic. Quoting Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2753-54, 105 L.Ed.2d 661 (1989), the Court held that the “principal inquiry in determining content neutrality is whether the government has adopted a regulation of speech “without reference to the content of the regulated speech.’ ” Madsen — U.S. at -, 114 S.Ct. at 2523. The Florida injunction passed this test, the Supreme Court said, because “none of the restrictions ... were directed to the contents of th[e] petitioner’s message.” Id. The Phoenix ordinance, like the Florida injunction, makes no reference to the content of the speech it purports to regulate. The Supreme Court’s ruling in Madsen thus fore[1172]*1172closes the plaintiffs’ contention that the Phoenix ordinance is viewpoint based.3

In Madsen, the Court announced that an injunction is subject to more rigorous scrutiny than is a generally applicable ordinance. To survive appellate review, the injunction must burden “no more speech than necessary to serve a significant government interest.” Madsen, — U.S. at -, 114 S.Ct. at 2525 (citing NAACP v. Claiborne Hardware Co., 458 U.S. 886, 916, 102 S.Ct. 3409, 3427, 73 L.Ed.2d 1215 (1982)). The Court explained that the standard is more lenient in cases such as this where we review an ordinance of general applicability. See Madsen — U.S. at -, 114 S.Ct. at 2524-25. In contrast to an injunction, a content neutral, time, place and manner restriction in an ordinance survives First Amendment scrutiny if it is “narrowly tailored to serve a significant governmental interest, and leave[s] open ample alternative channels of communication.” Perry, 460 U.S. at 45, 103 S.Ct. at 955 (citations omitted). The dissent urges a more stringent standard for an ordinance than an injunction. In Madsen, Justice Stevens propounded the same view but the majority expressly rejected it. Madsen at -, 114 S.Ct. at 2525. We are bound by the majority.

The Court held in Madsen that the injunction survived scrutiny under the more rigorous standard because it burdened no more speech than necessary to serve significant government interests. The Court focused on several such interests that the Phoenix ordinance likewise serves. These include a woman’s right to abortion and other pregnancy-related treatment, see Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), as well as the state’s interest in public safety and order, including street and sidewalk traffic control, see Madsen, — U.S. at -, 114 S.Ct. at 2526. The Madsen

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Sabelko v. City of Phoenix, 68 F.3d 1169, 95 Cal. Daily Op. Serv. 8189 (9th Cir. 1995).

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