Anti-abortion protester loses free speech fight against San Diego ordinance

A federal judge cited the necessity of keeping San Diego students safe in finding the ordinance constitutional as applied to a man who wanted to hand out anti-abortion leaflets outside high schools.SAN DIEGO (CN) — San Diego can keep an ordinance blocking leafletting in public spaces near schools, despite an anti-abortion protester who said the restriction was unconstitutional.U.S. District Judge Gonzalo Curiel found Friday the ordinance was narrowly tailored and did not prevent demonstrators like Don Blythe from communicating their message.“The city enacted this ordinance in an extraordinarily polarized political environment, wherein issues impacting students are subject to immense and impassioned public debate, protest, and opposition," Curiel, a Barack Obama appointee, wrote. “The court cannot ignore this evolving societal context and finds that it lends support to the city’s theory that the well-being of students is enhanced and protected by limiting certain demonstration-related conduct immediately outside schools — namely, unconsented close approaches — will advance student tranquility and safety.”Blythe sued the city in 2024 for what he claimed was a violation of his First and Fourteenth Amendment rights after the city updated a law to create a 100-foot buffer zone around the entrance to schools, places of worship and medical facilities.The ordinance established that a demonstrator in the buffer zone had to receive explicit permission from anyone within 8 feet in order to talk to them or, in Blythe’s case, hand them literature.The city claimed that the ordinance allowed for an orderly movement of students to and from school. But Blythe said that the city failed to provide any evidence that constitutionally protected activities obstructed them.Curiel’s ruling came one week after the parties argued for summary judgment.“The law passes intermediate scrutiny — it advances a significant government interest; is narrowly tailored to serve that interest; and leaves open ample alternative channels for communication of the information — and is therefore an appropriate regulation on the time, place, or manner of the protected speech and expression," Curiel wrote.Michael Millen, an attorney representing Blythe, appealed the decision less than two hours after the judge’s order was filed.“While the court’s adverse ruling will result in additional delay, we are confident that the Ninth Circuit Court of Appeals will find the city of San Diego’s restrictions on leafleting an unjustified and unconstitutional infringement on free speech,” he wrote in an email to Courthouse News.In his ruling, Curiel wrote that the city’s interest has always focused on the safety of students as they enter and exit school buildings.“The city’s interest in protecting safe and peaceful access includes an interest in protecting students from ‘obstruction, harassment, and intimidation,’ but it is not so limited,” he continued. “Rather, an interest in safe access to schools inherently includes an interest in maintaining safe and orderly entry and exit conditions."Curiel also rejected the plaintiff’s arguments the city provided insufficient evidence to support the necessity of the ordinance.The city provided a staff report that mentioned instances of heated, and occasionally physical, altercations at Southern California schools. Curiel found this report was sufficient, noting that a city only needs a little evidence to support such an ordinance.Ultimately, he found that the ordinance did not prevent Blythe from communicating his anti-abortion message.“The ordinance does not hinder the readability of signs and oral communication, nor does it prevent plaintiff from standing in students’ paths and distributing leaflets to willing recipients,” the judge wrote. “Therefore, even accepting plaintiff’s claims regarding the impracticability of leafleting in his preferred manner under the ordinance, the court finds that he still has ample alternatives for communicating his message to students near schools without disrupting unwilling listeners.”A spokesperson for the city said it was pleased with the decision.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