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Federal court upholds abortion foes' 1st Amendment rights

Ruling affirms activists' right to display photos of aborted fetuses near a middle school.

July 03, 2008|Victoria Kim | Times Staff Writer

The 1st Amendment rights of two anti-abortion activists were violated when they were ordered to stop circling a Rancho Palos Verdes middle school in a truck displaying graphic photos of aborted fetuses, a federal appellate court ruled Wednesday.

Overturning an earlier district court judgment, a U.S. 9th Circuit Court of Appeals panel unanimously ruled that school officials and sheriff's deputies violated the men's free speech rights by ordering them to leave the school's neighborhood.

The court in its ruling on a lawsuit brought by the activists cited the concept of a "heckler's veto," which states that free speech cannot be limited based on listeners' reactions to the content.

The activists' "speech was permitted until the students and drivers around the school reacted to it, at which point the speech was deemed disruptive and ordered stopped," Judge Harry Pregerson wrote in the ruling. "This application of the statute raises serious 1st Amendment concerns."

The 7-by-20-foot truck with photos of first-term fetuses on three sides appeared near Dodson Middle School around 7:30 a.m. March 24, 2003, as students arrived. Several stopped to stare at the photos, which showed fetuses with small hands and feet and the word "choice" in quotation marks and big block letters, according to court documents.

Assistant Principal Art Roberts told the trial court that he saw several children who appeared to be angered by the images and that he had to discourage a group of boys from throwing rocks at the truck.

Roberts called deputies, who stopped and searched the truck and another vehicle, then ordered the activists to leave the area, according to court documents.

"It's the off-putting speech that needs protection, otherwise there is no need for the 1st Amendment," said Robert Muise, a lawyer for the Center for Bio-Ethical Reform, who filed the suit against Los Angeles County Sheriff's Department and school officials.

The three-judge panel also ruled that the individual deputies and school officials could not be held liable for the 1st Amendment violations, though the panel found that the deputies wrongly detained the activists for 75 minutes.

"A reasonable officer in the deputies' situation could believe that their actions were lawful," said Jennifer Lehman, a lawyer in the county counsel's office.

The suit is one of several 1st Amendment battles the Center for Bio-Ethical Reform is fighting around the country in its reproductive choice campaign, in which trucks and planes carry graphic images of aborted fetuses to expose the public to what its members call "the reality of abortion."

Gregg Cunningham, the center's executive director, said in a deposition that he has seen students faint, become physically ill, weep, avert their gazes and leave the room in response to photos his group uses in the campaign, according to court papers. "There are some realities which can not be adequately communicated with words alone," he said. "Students who are old enough to have an abortion are old enough to see an abortion."

Mary-Jane Wagle, chief executive of Planned Parenthood Los Angeles, said her group was concerned that young children may be exposed to graphic and jarring images without proper discussion in school or at home.

"Certainly we know they will be horrified, but will they understand what they see? We don't know," Wagle said. "We really believe that what's important is for families to talk about these issues at home, in a safe place."

School representatives could not be reached for comment.

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victoria.kim@latimes.com

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