No. 14-988
__________________________________________________________________
In the Supreme Court of the United States
October Term, 2014
___________________________________________
JOSEPH ALVIN GLADSTONE,
Petitioner,
v.
CITY OF SAN LEONARDO,
Respondent.
_____________________________________
BRIEF FOR THE RESPONDENT
_____________________________________
COMPETITOR NUMBER: 26
Counsel for Respondent
QUESTIONS PRESENTED
1.
Whether San Leonardo’s Ordinance 328 should be treated as content-neutral because
it does not seek to censor any specific speech, and has been applied equally to all
disruptive speakers.
2.
Whether intermediate or strict scrutiny applies if the government restricts explicit
photographs of aborted fetuses, in violation of an ordinance enacted to protect
children and ensure their participation in community and religious activities.
i
TABLE OF CONTENTS
_____________________________________________________________________________
QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .i
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .ii
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iv
STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .vi
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
I. ORDINANCE 328 SHOULD BE TREATED AS CONTENT-NEUTRAL AND
SUBJECT TO INTERMEDIATE SCRUTINY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
A. The plain language of Ordinance 328 applies the statute in a content-neutral
manner to a wide variety of speakers, regardless of the content of their
message. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
B. The legislative history of Ordinance 328 shows a motivation to avoid any
regulation based solely on the content of protected speech. . . . . . . . . . . . . . . 8
C. The actual enforcement of Ordinance 328 shows that the ordinance is applied
equally to all disruptive speakers, regardless of the content of their speech. . .9
II.
THE GOVERNMENT MAY RESTRICT EXPLICIT PHOTOGRAPHS OF
ABORTED FETUSES, EVEN IF DISPLAYED AS PART OF POLITICAL,
MORAL, OR RELIGIOUS ADVOCACY IN A TRADITIONAL PUBLIC
FORUM, IN ORDER TO PROTECT CHILDREN. . . . . . . . . . . . . . . . . . . . . . . 13
A. Applying content-neutral intermediate scrutiny, Ordinance 328 is not an
unconstitutional infringement upon petitioner’s First Amendment rights. . . .14
1. Ordinance 328 passes an intermediate-level scrutiny test because it
serves a substantial government interest . . . . . . . . . . . . . . . . . . . . . 15
2. Ordinance 328 is narrowly tailored to meet this substantial
government interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
ii
B. Assuming arguendo that Ordinance 328 is content-based and strict scrutiny
applies the ordinance is still constitutional because it is narrowly tailored to
serve a compelling governmental interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
1. Protecting the well being of children is a compelling governmental
interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
2. Ordinance 328 is narrowly tailored to serve its compelling
governmental interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
iii
TABLE OF AUTHORITIES
PAGE
Cases
United States Supreme Court Cases
Bellotti v. Baird, 443 U.S. 622, 635 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Boos v. Barry, 485 U.S. 312, 321 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Brown v. Entm’t Merchants Ass’n, 131 S. Ct. 2729 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 20
Burson v. Freeman, 112 S.Ct. 1846, 1850 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Carey v. Brown, 447 U.S. 455 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984) . . . . . . . . . . . . . . 3, 14
Consolidated Edison Co. of New York, Inc. v. Public Service Commission of New York,
447 U.S. 530 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
Forsyth County v. Nationalist Movement, 505 U.S. 123, 134 (1992). . . . . . . . . . . . . . . . . . . . 3, 12
Ginsberg v. New York, 390 U.S. 629 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .passim
Gitlow v. New York, 268 U.S. 652 (1925) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Greer v. Spock, 424 U.S. 828 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Heffron v. International Society for Krishna Consciousness, Inc., 101 S.Ct. 2559 (1981) . . . . . . 7
Lehman v. City of Shaker Heights, 418 U.S. 298 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Kovacs v. Cooper, 366 U.S. 77 (1949) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
McCullen v. Coakley, 134 S.Ct. 2518 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Members of City Council of City of Los Angeles v. Taxpayers for Vincent,
466 U.S. 789 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
iv Miller v. California, 413 U.S. 15 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Roper v. Simmons, 543 U.S. 551 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Stable Comm. Of Cal., Inc., v. FCC, 492 U.S. 115 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Texas v. Johnson, 491 U.S. 397 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622 (1994) . . . . . . . . . . . . . . . . . . . .passim
Ward v. Rock Against Racism, 491 U.S. 781(1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
United States v. O’Brien, 391 U.S. 367 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 15
United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803 (2000) . . . . . . . . . . . . . . . . . . . . . . . . 11
U.S. v. Albertini, 472 U.S. 675, 688-89 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14, 16
State Court Cases
Grove v. City of Penn., 342 F.Supp.2d 291 (D. Penn., M.D.P.A. 2004). . . . . . . . . . . . . . . . . . . .12
Secondary Sources
Elena Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First
Amendment Doctrine, 63 U. CHI. L. REV. 413 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 8
Geoffrey R. Stone, Content Regulation and the First Amendment, 25 WM. & MARY L. REV.
189 (Winter 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
v
STATEMENT OF JURISDICTION
A Formal Statement of Jurisdiction has been omitted in accordance with the Rules of the
Washington College of Law’s Burton D. Wechsler First Amendment Moot Court Competition.
vi STATEMENT OF THE CASE
San Leonardo City adopted Ordinance 328, prohibiting an individual from engaging in
activity that disrupted or interfered “with the peaceful conduct of religious services or
community activities, or impedes children involvement in religious or community activities.”
J.A. at 3. On December 24, 2013, at least fifty people were viewing the live nativity scene at St.
Leonardo Church. J.A. at 31. Gladstone’s van was plastered with actual photographs of aborted
fetuses. J.A. at 3. Gladstone then parked his van, on the only street leading to the church, and
only route families could take to view the nativity scene. J.A. at 3. Gladstone began yelling and
screaming with a megaphone “Hypocrites! Tell your children there would be no Christmas had
Mary chosen to abort the baby Jesus. See what would have become of him.” J.A. at 3. He then
gestured toward the photographs of aborted fetuses on his van. J.A. at 3.
Reverend Steve Hale noticed some parents rushing their children away from the church,
and out of view of the photographs that were clearly visible on Gladstone’s van. J.A. at 3.
Reverend Hale called the police, fearing the commotion might escalate when he saw some
parents yelling at Gladstone. J.A. at 4. Gladstone was ordered to pay the maximum fine amount
under the Ordinance. J.A. at 4. On January 2, 2014, Gladstone filed a compliant with the San
Leonardo Public Safety Commission (“The Commission”). J.A. at 4.
The Commission oversees the San Leonardo Department of Public Safety and
implements the public safety regulations enacted by the San Leonardo City Council. J.A. at 4.
The Commission concluded Glastone violated the Ordinance because the photographs on
Gladstone’s van were “real [and] horrifying,” causing parents to take their children home or
worship elsewhere in order to avoid him. J.A. at 4. Gladstone then applied for a permit to
1
protest in front of the church. J.A. at 4. The Commission denied his request citing their earlier
decision, In the matter of Joseph Alvin Gladstone. Decision 2014-01-02; J.A. at 31.
Gladstone filed a claim in federal court, seeking a preliminary injunction against San
Leonardo City, claiming Ordinance 328 violated his First Amendment right. J.A. at 2. The
District Court for the Middle District of San Leonardo denied Gladstone’s motion, but granted
San Leonardo’s motion for summary judgment, finding Ordinance 328 “constitutional on its face
and in practice.” J.A .at 6. Gladstone appealed to the United States Court of Appeals for the
Fourteenth Circuit. J.A. at 13. The Fourteenth Circuit affirmed the decision of the lower court,
denying the motion for summary judgment. J.A. at 14. However, the Fourteenth Circuit found
Ordinance 328 was content-based and subject to strict scrutiny, but still narrowly tailored to
further a compelling governmental interest. J.A. at 14. Gladstone petitioned for a writ of
certiorari to the Supreme Court of the United States. J.A. at 26.
2
SUMMARY OF THE ARGUMENT
The Court of Appeals’ judgment should be affirmed in part and reversed in part because
Ordinance 328 is content-neutral and should be subject to intermediate scrutiny. When
reviewing the plain language of Ordinance 328, one will find that the Ordinance 1. does not
regulate speech based on content and 2. is applied equally to all disruptions.
Ordinance 328 is neutral on its face. The government did not draft the Ordinance
because it disagreed with the message of the speech. Ward v. Rock Against Racism, 491 U.S.
781 (1989) (“The principal inquiry in determining content neutrality, in speech cases generally
and in time, place, or manner cases in particular, is whether the government has adopted a
regulation of speech because of a disagreement with the message it conveys.”) quoting Clark v.
Community for Creative Non-Violence, 468 U.S. 288 (1984). On its face Ordinance 328 does
not target a specific group or subject matter. J.A. at 7.
Ordinance 328 applies equally to all groups and does not regulate speech because of the
presumed reaction it would receive. See Forsyth County v. Nationalist Movement, 505 U.S. 123,
134 (stating “listeners’ reaction to speech is not a content-neutral basis for regulation.”). Even
when looking at the history and application of Ordinance 328 it is shown that it is content
neutral. See Hill v. Colorado, 530 U.S. 703 (2000) (holding a statute prohibiting any person
from knowingly approaching another person near a health care facility without their consent was
content neutral because the legislative history and enforcement showed it applied equally to
everyone). Further, when reviewing the legislative history in its entirety, it is shown that the
Ordinance was intentionally drafted broadly to ensure no ones constitutional rights were
impinged upon. Elena Kagan, Private Speech, Public Purpose: The Role of Governmental
Motive in First Amendment Doctrine, 63 U. CHI. L. REV. 413, 451-52 (1996) (stating “the broad
3
reach of a statute can help confirm that it was not enacted to burden a narrower category of
disfavored speech.” Id. at 2532. Ordinance 328 was enacted broadly intentionally to prevent it
from regulating a specific category of speech, and applies equally to all individuals, thus is
content neutral.
Ordinance 328 is content-neutral, thus intermediate scrutiny applies. To withstand
intermediate scrutiny the Ordinance must “further an important or substantial governmental
interest” and “need not be the least restrictive means of advancing the governments interest.”
See Taxpayers for Vincent, 466 U.S. at 805, quoting United States v. O’Brien, 391 U.S. 367, 377
(1968). Ordinance 328 serves a substantial government interest in preventing disruptive
activities, and protecting children from inappropriate material. Ginsberg v. N.Y. 390 U.S. 629
(1968). The means chosen by the statute are no broader than necessary to achieve the regulation,
as the Ordinance explicitly limits its terms to prevent only speech that disrupts specific activities
on specific properties. J.A. at 27. San Leonardo citizens, including children, who participate in
these activities have a recognized right to be free from intrusive speech.
Even if Ordinance 328 is determined to be content-based and strict scrutiny applies,
Ordinance 328 is constitutional because it narrowly tailored to serve a compelling governmental
interest. “The Government may . . . regulate the content of constitutionally protected speech in
order to promote a compelling interest if it chooses the least restrictive means to further the
articulated interest. Stable Comm.Of Cal., Inc., v. FCC, 492 U.S. 115 (1989). Protecting
children from obscene material has consistently been upheld as a compelling state interest.
Ginsberg v. N.Y., 390 U.S. 629, 639 (1968) (finding that “even where there is an invasion of
protected freedoms the power of the state to control the conduct of children reaches beyond the
scope of its authority over adults . . .”). Ordinance 328 is narrowly tailored. The narrow
4
tailoring requirement means the City must have employed the least restrictive means to further
the articulated interest. Stable Comm.Of Cal., Inc., v. FCC, 492 U.S. 115 (1989). Ordinance 328
does not prohibit all protest or activities at all times. It clearly defines what is required to violate
the Ordinance and applies equally to everyone.
Ordinance 328 was enacted broadly to ensure equal application to all groups and
individuals thought to be in violation of the Ordinance. It does not regulate a specific type of
speech nor does its legislative history indicate it was enacted with ulterior motives to restrict a
specific type of speech, thus making it a content-neutral ordinance and requiring an intermediate
scrutiny analysis. Ordinance 328 serves a substantial governmental interest that is not
substantially broader than necessary to achieve the government’s interest. Ward v. Rock Against
Racism, 491 U.S. 781 (1989). Even if Ordinance 328 is found to be content based and strict
scrutiny applies, Ordinance 328 is still constitutional because it serves a compelling government
interest and is narrowly tailored to achieve that interest. The Supreme Court should affirm in
part and reverse in part the District Courts decision.
5
ARGUMENT
I.
ORDINANCE 328 SHOULD BE TREATED AS CONTENT-NEUTRAL AND
SUBJECT TO INTERMEDIATE SCRUTINY.
The distinction between whether a statute is content-neutral or content-based is crucial to
the determination of the constitutionality of Ordinance 328. Content-neutral statutes must be
“justified without reference to the content of the regulated speech,” and are not subject to the
almost always-fatal strict scrutiny that content-based restrictions are. See, e.g., McCullen v.
Coakley, 134 S.Ct. 2518 (2014) (citing, inter alia, Ward v. Rock Against Racism, 491 U.S. 781,
109 S.Ct. 2746 (1989)). “[A] regulation that serves purposes unrelated to the content of
expression is deemed neutral, even if it has an incidental effect on some speakers or messages but
not others…the question in such a case is whether the law is justified without reference to the
content of the regulated speech.” McCullen, 114 S.Ct. at 2531 (internal citations omitted)
(emphasis added). In other words, if a statute’s justification is not rooted in the content of the
prohibited speech, the regulation is content neutral. In the case of Ordinance 328, the plain
language, legislative history, and actual enforcement of the statute all show that it is content
neutral and does not rely on an improper motive to prohibit certain speech.
A. The plain language of Ordinance 328 applies the statute in a content-neutral
manner to a wide variety of speakers, regardless of the content of their message.
“The purpose, or justification, of a regulation will often be evident on its face.” Turner
Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 642 (1994) (Turner I) (internal citations
omitted). Thus, the first place for this Court to analyze Ordinance 328’s content neutrality is the
plain terms of the statute. If the language of the statute referenced any content of speech as a
basis for prohibition, then Ordinance 328 would be content-based. However, a plain reading of
6
the statute shows the exact opposite: that Ordinance 328 applies to all disruptive speakers solely
on the basis of their disruption, and not the viewpoints they espouse.
“As a general rule, laws that by their terms distinguish favored speech from disfavored
speech on the basis of the ideas or views expressed are content based.” Turner I, 512 U.S. at
643, citing, inter alia, Burson v. Freeman, 112 S.Ct. 1846, 1850 (1992). Clearly, therefore, if the
text of Ordinance 328 displays a favoritism for pro-abortion viewpoints or disfavors antiabortion speech, it is content based. However, “laws that confer benefits or impose burdens on
speech without reference to the ideas or views expressed are in most instances content-neutral.”
Id. (citing City Council of Los Angeles v. Taxpayers for Vincent, 104 S.Ct. 2118 (1984)); Heffron
v. International Society for Krishna Consciousness, Inc., 101 S.Ct. 2559 (1981) (emphasis
added); See also Geoffrey R. Stone, Content Regulation and the First Amendment, 25 Wm. &
Mary L. Rev. 189, 191 (Winter 1983). In other words, where statutes make no reference to the
language espoused by certain speakers, but merely prohibit speech based on some other
justification, the statute is presumed to be content-neutral.
Unfortunately for Petitioner, the express language of Ordinance 328 clearly does not
reference any content of speech. Instead, merely the disruptive effect of speech is prohibited.
The language of the Ordinance simply prohibits “acts” done which may “interfere with the
peaceful conduct” of certain community activities in designated areas or the public areas nearby.
J.A. at 27. The statute restricts the right of “[a]ny person…[to] interfere with the peaceful
conduct of services or activities, or impede children’s involvement in services or activities.” J.A.
at 27 (emphasis added). Clearly, there is no reference to the particular content of speech as the
basis for any prohibition; indeed, the statute applies to “any person” who is disruptive, regardless
of the content of their speech. As this Court has stated, such laws, “without reference to the
7
ideas or views expressed,” are presumed to be content neutral. Turner I, 512 U.S. at 643. In this
case, the terms of Ordinance 328 are more than neutral; they are silent concerning the viewpoint
of any regulated speech. J.A. at 27; Members of City Council of City of Los Angeles v.
Taxpayers for Vincent, 466 U.S. 789, 804 (1984) (holding that where statute was “neutralindeed…silent- concerning any speaker’s point of view,” the statute was content neutral). Thus,
it is clear that the plain terms of Ordinance 328 underline the content-neutrality of the statute.
B. The legislative history of Ordinance 328 shows a motivation to avoid any
regulation based solely on the content of protected speech.
The Court of Appeals incorrectly determined that the legislative history behind
Ordinance 328 betrayed an improper motive to prohibit speech such as Petitioner’s anti-abortion
speech. J.A. at 18. However, the Court of Appeals incorrectly applied the standard in analyzing
legislative history to Ordinance 328. As this Court has put it, “it is a familiar principle of
constitutional law that this Court will not strike down an otherwise constitutional statute on the
basis of an alleged illicit legislative motive.” McCullen v. Coakley, 114 S.Ct. 2445 (2014)
(internal quotations omitted). In addition, the “broad reach of a statute can help confirm that it
was not enacted to burden a narrower category of disfavored speech.” Id. at 2532 (citing Elena
Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment
Doctrine, 63 U. CHI. L. REV. 413, 451-52 (1996)).
In this instance, the Court of Appeals construes one councilmember’s concern over
completely unrelated protests that disrupt church services to a desire to regulate speech based on
its content. J.A. at 18–19. However, the record clearly shows that other council members
purposefully drafted Ordinance 328 in very broad language. J.A. at 29–30. This is an obvious
attempt to create a broad reach of the statute, to ensure that it did not prohibit certain speech and
become a content-based restriction on speech. The Court of Appeals ignored the plain motive of
8
the council to expand the scope of Ordinance 328 to apply equally to all forms of speech, instead
selectively choosing certain portions from the minutes to show that Ordinance 328 was content
based. Clearly, however, if this Court examines the entirety of the legislative history, it should
become obvious that a majority of the legislature of San Leonardo possessed a rather proper
motive to enact a broad statute that applied to all disruptive speakers, regardless of the viewpoint
of their message. San Leonardo City Council, Excerpt from Meeting Minutes (July 7, 2008);
J.A. 28–29. Rather than evidence of an improper, content-based motive, the legislative history
of the San Leonardo City Council meetings shows an obviously proper content-neutrality.
C. The actual enforcement of Ordinance 328 shows that the ordinance is applied
equally to all disruptive speakers, regardless of the content of their speech.
Finally, the Court of Appeals relied on the enforcement of Ordinance 328 to show its
content-based nature. J.A. at 16–17 (citing Texas v. Johnson, 491 U.S. 397, 412 (1989)). It is
clear that courts can look to the implementation of an ordinance to determine the contentneutrality of the ordinance. See Ward, 491 U.S. at 795 (“Even if the language of the guideline
were not sufficient on its face to withstand challenge, our ultimate conclusion would be the
same, for the city has interpreted the guideline in such a manner as to provide additional
guidance to the officials charged with its enforcement.”). Indeed, where the enforcement of a
statute shows no viewpoint bias, the statute is deemed content-neutral, provided the process of
enacting the statute also shows no viewpoint bias. See Taxpayers for Vincent, 466 U.S. at 804
(finding that statute prohibiting posting of signs on public property was content neutral “[f]or
there is not even a hint of bias or censorship in the City’s enactment or enforcement of this
ordinance.” (emphasis added)).
Contrary to what the Court of Appeals found, the actual enforcement of Ordinance 328
shows no hint of bias or censorship. The prohibitions of certain speech, and the citations issued
9
to certain speakers, relied on the disruption caused by the speaker, not the content of the speech.
For example, the Ordinance was applied to such wide-ranging activities as ringing Salvation
Army bells, the performance of a middle school marching band, and a vegetarian protest. J.A. at
33-35. Thus, the prohibition applied equally to speech as innocuous as middle school music and
holiday bells and heavily politicized speech, such as a vegetarian advocate’s speech against meat
and Petitioner’s anti-abortion speech. J.A. at 31–35. The only common element in the
enforcement against all of these speakers was that the San Leonardo Public Safety Commission
determined the speech had caused a disruption. Id. There was no common examination or
theme of the speech prohibited to show evidence of an improper, content based motive in the
enforcement of the statute. Thus, the enforcement of the statute shows a content-neutral
application prohibiting disruptive speech based not on the content of the speech, but the actual
disruption presented.
Petitioner’s argument that Ordinance 328 is content-based is unfounded and incorrect.
Ordinance 328 states “any person who enters into any community center or school, including any
community center’s, or school’s, ground, street, sidewalk, or public way adjacent thereto,
without lawful business thereon, and whose acts interfere with the peaceful conduct of services
or activities, or impede children’s involvement in services or activities, is guilty of a
misdemeanor…” J.A. 27. Ordinance 328 does not regulate speech on its subject matter.
Consolidated Edison Co. of New York, Inc. v. Public Service Commission of New York, 447 U.S.
530, 536 (1980) (holding governmental action that regulates speech on the basis of its subject
matter “slip[s] from the neutrality of time, space, and circumstance into a concern about
content.”). Nor does it target or regulate a specific type of speech or expression. On its face
10
Ordinance 328 “does not indicate a content-based bias toward a specific type of speech or
expression.” J.A at. 6.
“Some regulations are, in fact, prima-facie content-based.” J.A. at 6. In cases where a
particular subject matter is regulated the Court can find that statute is content-based. See Boos v.
Barry, 485 U.S. 312, 321 (1988) (finding a statute which prohibited protestors from displaying
political signs within 500 feet of embassies was a content-based “restriction on political speech
in a public forum.”). Similarly, in Greer v. Spock the Court found a regulation banning
“speeches and demonstrations of a partisan political nature” was also content-based. 424 U.S.
828 (1976). In cases where a particular type of speech is regulated the court can find that the
regulation is content-based. See United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 806
(2000) (holding a statue requiring a cable television provider to “fully scramble or otherwise
fully block” “sexually oriented programming” when children were likely to be awake content
based because it selected particular programming content, and a particular programmer.).
Unlike an ordinance that specifically prohibits political speech or activities, “Ordinance
328’s language does not target a specific group or subject matter,” therefore it is not contentbased. J.A. at 7; See also Carey v. Brown, 447 U.S. 455 (1980) (holding an ordinance
prohibiting all types of picketing except for peaceful labor picketing targeted a specific group
and denied equal protection). Ordinance 328 applies equally to yoga students holding classes
across the street from religious institutions, to bands who wish to hold a concert next to a
mediation center. J.A. at 31–33; See In the matter of MuMuMango Yoga, Decision 2008-11-14
(holding by Commission that outdoor yoga classes which chant and drum during church services
are permissible under Ordinance 328); See also In the matter of Jesse and the Rippers (“San
Leonardo University acted inappropriately in cancelling [a bands] performance” anticipating it
11
would have disturbed the meditation center located next door). Decision 2010-03-10. Ordinance
328 does not specifically target or prefer one group over another, nor does it ban a specific type
of speech because the government or people do not agree with the message. See Forsyth County
v. Nationalist Movement, 505 U.S. 123, 134 (1992) (stating “listeners’ reaction to speech is not a
content-neutral basis for regulation.”).
In Grove v. City of Penn. the District Court of Pennsylvania found police officers
enforcement of ordinance violated the First Amendment right of protectors by refusing to allow
them to display signs depicting aborted fetuses during a parade. 342 F.Supp.2d 291 (M.D.P.A.
2004). The City of York enacted an ordinance making it unlawful to hold a parade or street fair
on the streets, sidewalks, or highways unless first obtaining a permit. 342 F.Supp.2d at 296.
During a Halloween parade Plaintiffs walked along the parade route and handed out religious
literature, while preaching, and holding signs with photos of aborted fetuses. Id. After receiving
complaints, officers approached Plaintiffs and told them to cover up their signs. Id. at 297.
When Plaintiffs refused to comply their signs were confiscated and they were arrested.
Ultimately, the Court found “there is no hecklers veto to the First Amendment,” and just because
protests can lead to confrontation does not mean the city can enact an ordinance in anticipation
of confrontation. Id. at 303.
The case at hand is easily distinguishable from Grove. 342 F.Supp.2d 291 (M.D.P.A.
2004). Petitioner was not arrested because of the crowds reaction, he was arrested because he
“1) engage[d] in a disruptive action that 2) impede[d] community center activities,” thus
violating the ordinance. J.A. at 7. Unlike in Grove, where plaintiffs were arrested only after
refusing to comply with police orders to conceal their signs, Petitioner was arrested because he
violated the ordinance on its face. Ordinance 328 states, “any person…whose acts interfere
12
with…or impede children’s involvement in services… is guilty of a misdemeanor.” J.A. at 27.
Petitioner parked on the only street leading to the church, while parents were bringing their
children to view the nativity scene. J.A. at 3. He then yelled, “Tell your children there would be
no Christmas had Mary chosen to abort the baby Jesus,” and pointed at the photos of the aborted
fetuses on his car. While some parents did get upset, it was the fact that parents hurried their
children away from the church, preventing the children from engaging in religious and
community activities, that he was arrested. J.A. at 3. Petitioners photographs were found to be
“real [and] horrifying” and “cause[ed] parents to opt to go home or worship elsewhere” with
their children. Petitioner was not penalized because parents and the government did not agree
with his message, he was charged because he interfered with the ability of children to attend
religious services. Ordinance 328 is not content-based and is therefore subject to intermediate
scrutiny.
II.
THE GOVERNMENT MAY RESTRICT EXPLICIT PHOTOGRAPHS OF
ABORTED FETUSES, EVEN IF DISPLAYED AS PART OF POLITICAL,
MORAL, OR RELIGIOUS ADVOCACY IN A TRADITIONAL PUBLIC FORUM,
IN ORDER TO PROTECT CHILDREN.
In an effort to protect children the government may, restrict certain explicit images,
without offending the First Amendment. The First Amendment states in relevant part that
“Congress shall make no law…abridging the freedom of speech… or the right of the people
peaceably to assemble….” Protected “speech” is not simply verbal communications, but extends
to activities that are nonverbal by nature. See Tinker v. Des Moines Indep. Comm. School. Dist.,
393 U.S. 503 (1969) (finding the First Amendment also protects symbolic speech and expressive
conduct).
However, this “does not confer an absolute right to speak…or an unrestricted and
unbridled license that gives immunity for every possible use of language and prevents the
13
punishment of those who abuse this freedom.” Gitlow v. New York, 268 U.S. 652, 666–67
(1925). Additionally, there are several categories of speech that do not warrant constitutional
protections. See Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) (holding fighting words are
a category of speech that is unprotected by the First Amendment); See also Miller v. California,
413 U.S. 15 (1973) (establishing a test to determine whether speech should be classified as an
obscenity, another form of speech not protected by the Constitution). Finally, “it is well settled
that a State or municipality can adopt more stringent controls on communicative materials
available to youth than on those available to adults.” Ginsberg v. New York, 390 U.S. 629
(1968).
A. Applying content-neutral intermediate scrutiny, Ordinance 328 is not an
unconstitutional infringement upon Petitioner’s First Amendment rights.
“Expression, whether oral or written or symbolized by conduct, is subject to reasonable
time, manner, and place restrictions.” Clark v. Community for Creative Non-Violence, 468 U.S.
288, 293 (1984). Logically, Ordinance 328 is time, manner, and place restriction, as it explicitly
prohibits people from disrupting certain activities in places delineated in the statute, including
schools and community centers. J.A. at 27. Also, Ordinance 328 is a content-neutral restriction
on the speech of San Leonardo residents, as discussed previously. When an ordinance is a
content-neutral time, manner, and place restriction, this court adopts an intermediate scrutiny
test. See, e.g., Turner I, 512 U.S. at 661; Turner Broadcasting Systems, Inc. v. FCC (Turner II),
520 U.S. 180, 213-14, 117 S.Ct. 1174, 1198 (1997) (“[content]-neutral regulations do not pose
the same ‘inherent dangers to free expression’…that content based regulations do, and thus are
subject to a less rigorous analysis, which affords the Government latitude in designing a
regulatory solution.” (quoting Turner I, 520 U.S. at 662) (other citations omitted)); U.S. v.
Albertini, 472 U.S. 675, 688-89 (1985); Clark, 468 U.S. at 293 (internal citations omitted).
14
Thus, the appropriate test for this Court to apply to Ordinance 328 is intermediate scrutiny, not
strict scrutiny.
1. Ordinance 328 passes an intermediate-level scrutiny test because it serves
a substantial government interest.
The “appropriate framework” for analyzing a content-neutral ordinance is a
determination of whether the ordinance “furthers an important or substantial governmental
interest; if the governmental interest is unrelated to the suppression of free expression; and if the
incidental restriction on alleged First Amendment freedoms is no greater than is essential to the
furtherance of that interest.” Taxpayers for Vincent, 466 U.S. at 805, quoting United States v.
O’Brien, 391 U.S. 367, 377 (1968). In other words, when defending a content-neutral regulation
of speech, the government must show a substantial interest in regulating the prohibited speech,
and it must show that the regulation is narrowly tailored to achieve this substantial interest.
Ordinance 328 serves a substantial government interest in preventing disruptive
activities. Past decisions of this Court have shown that cities have a “substantial interest in
protecting its citizens from unwelcome noise…[and that] municipalities have a weighty…interest
in proscribing intrusive and unpleasant forms of expression.” Taxpayers for Vincent, 466 U.S. at
805-06, citing Kovacs v. Cooper, 366 U.S. 77, 86-89 (1949); Lehman v. City of Shaker Heights,
418 U.S. 298, 302-03 (1974) (plurality opinion); Erznoznik v. City of Jacksonville, 422 U.S. 205,
209, n.5 (1975). Thus, municipalities have a substantial interest in prohibiting forms of
expression- such as speech and acts- which are disruptive and intrusive to other citizens. This
allows municipalities to protect the equally important right of citizens to not be subjected to
intrusive speech. Id.
In the instant case, Ordinance 328 clearly recognizes San Leonardo’s substantial interest
in protecting citizens from disruptive acts, which it explicitly prohibits. The Ordinance
15
recognizes the importance of public safety and the ability of its citizens to be free from intrusive
action, as it prohibits disruptive activities that “interfere with the peaceful conduct of services or
activities, or impede children’s involvement in services or activities.” J.A. at 27. Clearly, under
established precedent of this Court, San Leonardo is justified in this prohibition. Taxpayers for
Vincent, 466 U.S. at 805-06. Therefore, the substantial interest prong of an intermediate scrutiny
analysis of the content-neutral Ordinance 328 is satisfied through its protection of “peaceful
conduct.”
2. Ordinance 328 is narrowly tailored to meet this substantial government
interest.
Under the “narrowly tailored” prong of intermediate scrutiny, “a regulation of the time,
place, and manner of protected speech must be narrowly tailored to serve the government’s
legitimate, content-neutral interests, but … it need not be the least restrictive or least intrusive
means of doing so.” Ward, 491 U.S. at 798 (emphasis added). For this requirement to be met,
all the government must show is that the “regulation promotes a substantial government interest
that would be achieved less effectively absent the regulation,” and furthermore, “[as] long as the
means chosen are not substantially broader than necessary to achieve the government's
interest…the regulation will not be invalid simply because a court concludes that the
government's interest could be adequately served by some less-speech-restrictive alternative.” Id.
at 800 (internal citations omitted); see also Albertini, 472 U.S. at 689 (time, manner, and place
restrictions, as well as those that burden speech incidentally, are not invalid “simply because
there is some imaginable alternative that might be less burdensome on speech….an incidental
burden on speech is no greater than essential…[so long as the interest advanced] would be
achieved less effectively absent the regulation.”) (internal citations omitted).
16
In the instant case, Ordinance 328 is sufficiently tailored to meet this requirement. The
means chosen by the statute are no broader than necessary to achieve the regulation, as the
Ordinance explicitly limits its terms to prevent only speech that disrupts specific activities on
specific properties. J.A. at 27. San Leonardo citizens, including children, who participate in
these activities have a recognized right to be free from intrusive speech. The government also
has a substantial interest in protecting this right.
To achieve this interest, the government has crafted explicit language in the statute to
limit the regulations only to particular areas. J.A. at 27. In addition, the Ordinance itself lays out
that it cannot be used outside of these limits, as it “Shall not be utilized to impinge upon the
exercise of constitutionally protected rights of freedom of speech or assembly.” J.A. at 27.
Thus, the actual language of the statute contains sufficient limitations to meet the narrowly
tailored requirement.
In addition, the enforcement of the statute shows how these limiting principles of
Ordinance 328 work to ensure that it does not prohibit more speech than necessary to achieve its
purpose. Silent, visual speech, which was reasonably found not to disrupt services and which
took place in a public space not adjacent to a community center, was found not to have violated
Ordinance 328. J.A. at 31–32. The only violations of Ordinance 328 were found where speakers
were in a public space, near a defined “community center,” and citizens attempting to participate
in the activities of the community center were actually prevented from doing so by the intrusive
speech. J.A. at 31–35. Thus, the particularized enforcement of the statute to only those speakers
whose actions disrupted citizens’ participation in activities in certain, designated areas, shows
that Ordinance 328 is narrowly tailored to achieve its substantial government interest.
17
B. Assuming arguendo that Ordinance 328 is content-based and strict scrutiny
applies the ordinance is still constitutional because it is narrowly tailored to
serve a compelling governmental interest.
Even if strict scrutiny applies, Ordinance 328 is still constitutional because it serves a
compelling government interest and is narrowly tailored. “The Government may . . . regulate the
content of constitutionally protected speech in order to promote a compelling interest if it
chooses the least restrictive means to further the articulated interest. Stable Comm.Of Cal., Inc.,
v. FCC, 492 U.S. 115 (1989). Parents have a right and an obligation to nurture their children,
shape their minds, and minimize their exposure to graphic materials. Brown v. Entm’t
Merchants Ass’n, 131 S. Ct. 2729, 2752 (2011) (Thomas, J., dissenting) (“The historical
evidence shows that the founding generation believed parents had absolute authority over their
minor children and expected parents to use that authority to direct the proper development of
their children.”). Constitutional interpretation has consistently recognized that child rearing is a
parents’ right and in the basic structure of our society. Ginsberg v. State of N.Y., 390 U.S. 629,
639 (1968) (“Constitutional interpretation has consistently recognized that the parents’ claim to
authority in their own household to direct the rearing of their children is basic in the structure of
our society.”). Confronting children on the street with graphic images prevents parent’s ability
to shape the minds of their children and minimize their exposure to images inappropriate for
minors.
1. Protecting the well being of children is a compelling governmental
interest.
The government may regulate the well being of children. J.A. at 20. The Court has
consistently held that children, developmentally are not the same as adults, and should not be
treated as such. See Bellotti v. Baird, 443 U.S. 622, 635 (1979) (stating children “often lack the
experience, perspective, and judgment to recognize and avoid choices that could be detrimental
18
to them.”); Roper v. Simmons, 543 U.S. 551, 569 (2005) (“[children] are more vulnerable or
susceptible to…outside pressures than adults.”). Specifically, within First Amendment
jurisprudence children are given special consideration. Ginsberg v. N.Y., 390 U.S. 629, 639
(1968) (finding that “even where there is an invasion of protected freedoms ‘the power of the
state to control the conduct of children reaches beyond the scope of its authority over adults . . .”)
quoting Prince v. Massachusetts, 321 U.S. 1158, 1165 (1944). The government has a greater
interest in regulating speech when dealing with minors. See Prince, 321 U.S. at 1165 (arguing
that the state has an interest in “protect[ing] the welfare of children” in order to ensure that they
are “safeguarded from abuses,” which might prevent their “growth into free and independent
well-developed men and citizens”). The government has a compelling interest to protect minors
and speech that harms minors falls out of the realm of First Amendment protection.
In Ginsberg, the Court found a New York statute, which regulated the sale of material
that was harmful to minors, constitutional. 390 U.S. 629 (holding a statute prohibiting the sale of
obscene material to minors under the age of seventeen was constitutional because minors needed
to be protected from graphic content). While the magazines were not considered obscene when
purchased by adults, “material which is protected for distribution to adults is not necessarily
constitutionally protected from restriction upon its dissemination to children.” Id. at 636. The
group of individuals that the questionable material is directed towards is relevant to whether the
material is an obscenity, and whether the First Amendment protects it. Id. States have an
interest in preventing children from being exposed to objectionable material and can “exercise its
power to protect the health, safety, welfare and morals of its community by barring the
distribution to children of books recognized to be suitable for adults.” Id.
19
Similar to Ginsberg, graphic images that may be acceptable for adults to witness are not
always acceptable for children. 390 U.S. 629. Petitioner displayed graphic images of aborted
fetuses on his minivan. J.A at. 3. He then advertised these images to children, shouting at their
parents to explain to them what abortion meant. Id. This is likely worse than selling “girle
magazines” to a sixteen-year-old boy. Ginsberg v. N.Y., 390 U.S. 629, 634. On the only street
that lead to the church, Petitioner forced children to view disturbing images, that while may have
been suitable for adults, were too gruesome, real, and horrifying for children. In the matter of
Joseph Alvin Gladstone, Decision 2014-01-02; J.A. at 3; J.A. at 31. One can assume that the
people who shouted back at him either asked him to leave the street or to remove the materials.
Id. When that did not work, police were called and Petitioner was arrested. Id. The Ordinance
specifically states anyone “whose acts interfere with the peaceful conduct of services or
activities, or impede children’s involvement in services…” violates Ordinance 328. J.A. at 15.
Petitioner completely disregarded the statue and interrupted the nativity viewing for children at a
religious institution, forcing parents to “hurry[] their children away from the church.” J.A. at 3
Adults have the cognitive ability to control how they internalize messages, children however
cannot. J.A. at 19.
The Court does not need to look to studies or find scientifically certain criteria to allow
the legislature to pass a statue regarding children’s exposure to graphic material. Brown v.
Entm’t v. Merchants Ass’n, 131 S. Ct. 2729, 2739; J.A. at 22. The Court must only be “able to
say that it was not irrational for the legislature to find that exposure to material condemned by
the statute is harmful to minors.” Ginsberg, 390 U.S. at 641; J.A. at 21–22. All that needs to be
shown is that the “government had a compelling interest in protecting children from materials
that may have serious detrimental effects on their psychological development.” J.A. at 22. This
20
serious detrimental effect can be shown from the Commission findings. The Commission
concluded Gladstone violated the Ordinance because the photographs were “real, horrifying, and
prompted questions from children as young as four years old regarding the images.” J.A. at 4.
The pictures were actual photographs “…of aborted fetuses…not images developed on a
computer or hand-drawn.” In the matter of Joseph Alvin Gladstone, Decision 2014-01-02; J.A.
at 31. Petitioner’s actions caused several parents to “attend a different church…to shield their
children from [his] protest. Id. The protest violated Ordinance 328, which sought to protect
children from graphic and obscene images that they were too young to disregard. Due to the
exception the First Amendment has carved out for children, this Court should find that the
government has a right to protect children and that Ordinance 328 is constitutional and should be
upheld.
The City has a compelling interest in protecting children from harmful images. Petitioner
did not hold his protest where he was influencing people who can vote or those who would
engage in civic discussion or debate with him; instead he targeted children, preventing them
from enjoying the nativity scene and Christmas activities with their families. Ordinance 328
seeks to ensure maximum participation in community and religious services by children. Thus,
showing the government has a substantial interest in protecting children and First Amendment
jurisprudence has carved out particular exceptions for minors.
2. Ordinance 328 is narrowly tailored to serve its compelling
governmental interest.
Ordinance 328 can withstand a strict scrutiny analysis because it is narrowly tailored to
achieve the states compelling interest. “The requirement of narrow tailoring is satisfied so long
as the regulation promotes a substantial governmental interest that would be achieved less
effectively absent the regulation, and the means chosen are not substantially broader than
21
necessary to achieve that interest.” Ward v. Rock Against Racism, 491 U.S. 781 (1989). In other
words, the regulation cannot be overly broad even if there is a compelling governmental interest.
In McCullen v. Coakley, the Court found that even though the state had a compelling
interest in “maintaining public safety on streets and sidewalks…buffer zones imposed serious
burdens on speech of sidewalk counselors,” therefore the regulation was not narrowly tailored.
134 S. Ct. 2518, 2541 (2014). In McCullen, Massachusetts’s legislators regulated sidewalk
counselor’s ability to counsel patients entering health care facilities where abortions were
performed. 134 S. Ct. at 2525. The law created a thirty-five foot buffer zone, preventing
counselors or strangers from approaching anyone without consent and with the intent to give
them anti-abortion pamphlets. Id. The Court found that the buffer zones were not the least
restrictive means of achieving the governmental interest because they carved out a significant
portion of public places, preventing counselors from having almost any contact with persons who
entered or existed the facilities. Id. at 2535. The regulation almost completely disabled sidewalk
counselors from “approaching patients and placing literature in their hands–the most effective
means of getting patient’s to accept it.” Id. at 2536. The Court found the buffer zone was not
the most narrowly tailored way for the government to achieve their compelling interest.
Unlike in McCullen, San Leonardo still allows groups to conduct their activities where
they are most effective, even if they are near religious services and community activities. 134 S.
Ct. 2518. In the matter of MuMuMango Yoga, the Commission found that a local yoga studio,
which conducted classes playing loud music during church services, could continue, even though
the loud banging distributed the congregants. J.A. at 32. St. Leonardo Cathedral brought a claim
against MuMuMango’s owner claiming the yoga studio violated Ordinance 328. Id. The yoga
studio was located across the street in a public parking lot. Id. There had been complaints from
22
the congregants about the noise, but the Commission found that MuMuMango’s did not prevent
the congregation from continuing their service. In the application of the Ordinance groups and
indivdiauls were still allowed to conduct their protests, activites, etc. They were not seriously
burdened by the statute, and could still request permits for activities, so long as their activities
were not disruptive.
Petitioners actions on the other hand, did not allow the families to continue to view the
nativity scene. In the matter of Joseph Alvin Gladstone, Decision 2014-01-02; J.A. at 31; J.A. at
3. His truck was parked on the only street that led up to the nativity scene. Id. Over fifty people
were at the nativity scene, and several more were on their way but left because they saw
Petitioner’s van. In the matter of Joseph Alvin Gladstone, Decision 2014-01-02; J.A. at 31. His
actions may have been permissible had he held his protect in front of City Hall, or at a health
care facility were abortions were routinely performed. Instead he choose to attend a community
activity that was frequented by children as young as four to impress upon them the highly
controversial subject of abortions.
The city’s interest in protecting children’s interest in participating in community
activities was directly served by limiting acts which would impede children’s involvement and
access to services or activities. “The city imposed the least effective means to further its
compelling interest in protecting children and assisting parents to raise their children as they see
fit.” J.A. at 25. The City did not forbid or limit Pettioner’s speech simply because they
disagreed with it; nor did they “pose an undue restriction on adult speech.” J.A. at 25. The
Ordinance does not apply to all places at all times, it simply carves out an exception for children
and those participating in religious or community activities to ensure maximum participation and
23
enjoyment. Thus, the Ordinance was narrowly tailored to serve a substantial government
interest.
24
CONCLUSION
For the reasons stated above, San Leonardo City respectfully requests this Court to affirm
in part and reverse in part the District Courts decision.
Respectfully submitted,
____________________________
Attorneys for the Respondent
Date: September 28, 2014
25