Challenge to California’s New Content-Based Restriction on Speech Outside Vaccination Centers
It was just filed Sunday by Michael Millen and by Catherine Short (of the Life Legal Defense Foundation), Aubin v. Bonta (N.D. Cal.):
On or about October 8, 2021, California enacted Senate Bill 742 …, creating Penal Code §594.39 … The Statute imposes various restrictions on First Amendment activity within 100 feet of the entrance to any “vaccination site,” which is defined to include any space or site where vaccines are provided, including hospitals, physician’s offices, clinics, and any retail space or pop-up location. While parts of the law restrict activity that is already illegal anywhere, such as obstructing movement and threatening people, the heart of the law is a restriction on approaching within 30 feet of another person for the purpose of engaging in various forms of traditional sidewalk free speech.
In 2000, the United States Supreme Court upheld a law imposing a similar restriction on approaching within 8 feet of other person in certain public locations, but size matters. SB742 is an unconstitutional restriction on free speech….
Public sidewalks are traditional public fora, which for “‘time out of mind’ … have been used for public assembly and debate.” … Governmental bodies may regulate the time, place and manner of speech in traditional public fora, but only if such regulations “are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.” … A content-based exclusion may only be enforced if it serves a compelling government interest and is narrowly drawn to achieve that end.
[1.] The Statute is not content-neutral.
Section 594.39(d) expressly exempts “lawful picketing arising out of a labor dispute, as provided in Section 527.3 of the Code of Civil Procedure.” Laws that exempt labor picketing are content-based restrictions on speech. Carey v. Brown (1980) (striking down residential picketing ordinance containing an exception for labor picketing); Police Department of Chicago v. Mosley (1972) (striking down ordinance banning picketing of schools, with an exception for labor picketing). Thus, the Statute must be enjoined unless it serves a compelling governmental interest and is narrowly drawn to serve that interest….
[E]ven if the State’s interest in people receiving vaccines were a compelling interest, the Statute is not narrowly drawn to achieve that interest. The Statute bans approaches of any person seeking entry for any reason to any location where any vaccine is provided. Creating speech-free zon
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