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9th Circuit Says California Law Does Not Ban Anti-Abortion Display Near Schools

By Howard M. Friedman

The U.S. 9th Circuit Court of Appeals yesterday held that a California statute prohibiting anyone from disrupting a school or its pupils could not be applied to prohibit an anti-abortion organization from driving a truck around the perimeter of a middle school, displaying enlarged, graphic photos of early-term aborted fetuses. In Center for Bio-Ethical Reform, Inc. v. Los Angeles County Sheriff Department, (9th Cir., July 2, 2008), the court held that First Amendment concerns would be raised if California Penal Code, Sec. 626.8 were read to apply to situations in which officials merely object that the content of speech is offensive to students. The court said the statute should be construed to apply only when disruptions are caused by the manner, rather than the content, of speech. However the court held that officers have qualified immunity as to plaintiffs' claim for damages because previously it was not clear that case law prohibiting a "heckler's veto" applied where the target audience is children. The court remanded the case for consideration by the trial court of injunctive relief.

In a press release reacting to the decision, the Center for Bio-Ethical Reform said: "We are grateful to God for granting the Founding Fathers the wisdom to create appellate courts which can rectify the mistakes of trial court judges.... The First Amendment means nothing if it doesn't mean the right to show people things they don't want to see."

Full post as published by Religion Clause on July 03, 2008 (boomark / email).