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.
