Anti-abortion activist presses San Diego for evidence behind school speech restrictions

A San Diego ordinance restricts demonstrations and leafleting near schools, but an activist says there's no proof he's been disruptive to high schoolers.SAN DIEGO (CN) — An anti-abortion activist in San Diego asked a federal judge on Friday to let San Diego allow him to pass out pamphlets to high school students on the edge of school grounds.Don Blythe asked the court to block the city’s ordinance creating buffer zones limiting what kind of First Amendment activity can take place 100 feet from the entrances and exits of schools, medical facilities and places of worship.“We are talking about quintessential First Amendment rights faced with a theoretical phantasm of blocked sidewalks and frustrated students,” plaintiff attorney Michael Millen argued. “There’s just no evidence. This is an ordinance that is looking for a reason to be there.”The city has, for the second time, failed to provide sufficient evidence the free speech activities negatively impacted any of the students and that this ordinance was necessary, Millen contended. He said the only evidence the city has provided in the past year is a staff report that doesn’t point to any specific incidents of harassment or obstruction.“There are police officers, video cameras, and school board members,” Millen said. “You would have thought in the intervening year, somebody in the Unified School District would have been able to say, ‘Let me tell you how important this is.’ You need to show somewhere or elsewhere there’s some sort of rational, thoughtful or legislative record that would justify this.”Blythe, who has demonstrated across the state, accused the city of violating his First and Fourteenth Amendment rights to demonstrate in front of students on public sidewalks near San Diego’s Patrick Henry High School as the students leave for the day.Under the updated 2024 ordinance, anyone leaving or coming to the protected zones now has to give demonstrators permission to talk to them — rather than denying them permission. Blythe is only challenging the ordinance as it applies to schools.In addition, anyone on public property within the 100-foot buffer zone can’t display signs or approach people within eight feet of themselves in order to talk or hand them literature without their consent.“It’s not how the world of human interaction works,” Millen said outside of the courtroom. “It’s not a passive kiosk.”Assistant city attorney Michael Phelps argued the ordinance does not shut down Blythe’s First Amendment rights, it just shuts down his preferred approach.“It’s really pointing to the fact of ingress and egress at schools, where you have someone directly there, interrupting or impeding that specifically,” Phelps said. “That’s the point of the ordinance. I’m not saying this is Mr. Blythe’s conduct, but similar conduct where leaflets can become problematic.”U.S. District Judge Gonzalo Curiel probed the attorneys for more evidence of related ordinances, case law or incidents of harassment involving demonstrators.“The city wasn’t able to identify one objection, one complaint, one report regarding his conduct,” the Barack Obama appointee said. “Is that something that can be properly considered at this point in the court as unconstitutional as it pertains to him?”However, Curiel wondered if the city’s ordinance might also be supported in a common sense interpretation.“To the extent that we have students that are trying to arrive or leave the school and they end up in a situation where they’re now confronted, they’re being approached in the process and that is viewed as less than optimal and disruptive,” he said. “It makes sense to give them a little bit of space. Individuals like Mr. Blythe can hand out these leaflets, but they can’t go to school and invade their space and create a situation where the student is uncomfortable.”Millen said the city must be held to a higher standard of evidence to establish the necessity of the ordinance.“The city is passing a law which has an undue restriction on speech, namely being able to effectively hand out literature,” he said. “The city is asking for this new standard, which is, if we just have a staff report which says we need it, don’t look any further. We’ve got to avoid city overreach and infringement on the First Amendment.”A spokesperson for the city declined to comment on the case.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads