Another federal court ruled against a newly passed California law several weeks ago for illegally prohibiting free speech outside vaccination cites, including abortion clinics. This is the second federal court to prohibit SB 742’s enforcement since it was overwhelmingly approved by the state legislature and signed by Governor Gavin Newsom last October.
According to the bill author, Senator Richard Pan (D-Sacramento), the bill was intended to create a 30-foot bubble around people entering any vaccine facility and prevent anyone from intimidating or harassing them. But the bill’s definition of harassment included constitutionally protected speech including, “passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with, that other person in a public way or on a sidewalk area.” The bill also gave an exemption for speech related to labor disputes.
“No one should be prevented from getting a vaccine that wants one,” said Greg Burt, Director of Capitol Engagement with the California Family Council. “But as too often happens, state legislators enacted an overly broad law as a sledgehammer against a small problem, not caring that the statute violated the constitutional rights of Californians.”
“We warned legislators the bill violated the First Amendment, but they didn’t seem to care. So crushing are these legal defeats, I doubt the California Attorney General’s Office will try and defend this law any longer,” Burt said.
The First Court Victory
The first federal court case against SB 742 was filed by Alliance Defending Freedom on behalf of Right to Life Central California in Fresno. They argued the law restricted Right to Life’s First Amendment right to peaceably offer charitable services to women in need on the public sidewalk and street outside its own building—and even its own parking lot—because Right to Life is located next to a Planned Parenthood abortion clinic that administers the HPV vaccine. United States District Judge Dale Drozd agreed and on October 30 he suspended the enforcement of SB 742, but only those provisions of the law relating to “harassment.”
The Second Court Victory
Then on December 23, 2021, United States District Court Judge Nathanael Cousins blocked enforcement of SB 742 in its entirety in response to a suit brought by Life Legal Defense Foundation Chief Legal Officer Katie Short. She argued on behalf of her clients, pro-life sidewalk counselors who regularly speak with women entering “vaccination site” abortion clinics, and who provide literature and display signs offering help with abortion alternatives – all activities that could be illegal under the new law. Judge Cousins agreed with Short’s assessment that SB 742’s provisions were unconstitutionally broad because it “would be nearly impossible to have any sort of conversation or exchange within a 30-foot buffer zone.”
The judge also had problems understanding how the law would be enforced fairly.
“This language raises a very real risk that speech will necessarily be chilled in the course of enforcement of this law, even in the absence of the overbroad harassment section. It is not at all clear how a given law enforcement official is supposed to determine, possibly from a significant distance, whether someone is approaching with the lawful purposes of educating or leafleting, as opposed to the unlawful purpose of intimidating or interfering,” Judge Cousins wrote.
The court also held that the law is not “content-neutral” because it targets only certain types of speech. Laws that are not content-neutral are subject to the highest level of judicial scrutiny.
“Life Legal is pleased that the court has carefully considered our arguments and has determined that we are likely to succeed in our lawsuit challenging this unprecedented suppression of speech on public sidewalks,” said Short. “We are confident that California’s assault on the First Amendment will be permanently struck down.”
