Metropolitan News-Enterprise


Thursday, July 3, 2008


Page 1


Court: Anti-Abortion Display Near School Was Protected Speech


By SHERRI M. OKAMOTO, Staff Writer


Pro-life advocates had a constitutional right to drive a truck displaying enlarged, graphic photographs of early-term aborted fetuses around the perimeter of a local public middle school, the Ninth Circuit U.S. Court of Appeals ruled yesterday.

The court partially overturned a summary judgment in favor of Los Angeles sheriff’s deputies who were sued after they detained two members of the Center for Bio-Ethical Reform near a school in Rancho Palos Verdes. 

Because the plaintiffs did not disrupt school activities, the three-judge panel concluded, their detention by police was unconstitutional and U.S. District Judge Gary L. Taylor of the Central District of California, now retired, erred in granting summary judgment in favor of the defendants.

Photographic Images

In March 2003, Paul Kulas and Thomas Padberg drove a truck displaying photographic images of aborted fetuses on the public streets around the perimeter of Dodson Middle School in starting at about 7:30 a.m.

The two men were affiliated with the center, a non-profit organization that states its main purpose is promoting “prenatal justice and the right to life for the unborn, the disabled, the infirm, the aged, and all vulnerable peoples through education and the development of innovative educational programs.”

The center’s executive director is Gregg Cunningham, a former Republican member of the Pennsylvania House of Representatives, who testified that the organization often targets middle school and high school students to discourage teenage abortions.

The school’s assistant pricipal, Art Roberts, opined that the heavy traffic around the school in the hour before classes began when the majority of students arrive on campus by car was a safety hazard when drivers or pedestrians become upset, angry, or distracted. He testified that several students stopped in the street to stare at the trucks, and that some children were upset by the images.

School officals contacted the sheriff’s department at around 7:50,  and two deputies stopped Kulas and Padberg at around 8:05. Kulas testified that the officers said the reason he and Padberg were stopped was because they were “driving these pictures around the school with offensive language, and…scaring kids.”

Supervisors Summoned

The officers summoned their supervisors and Roberts to the scene. Over an hour elapsed before Roberts read Kulas and Padberg California Penal Code Sec. 626.8—which criminalizes interference with the peaceful conduct of school activities or that disrupts pupils— and told them to leave the area around the school. Kulas and Padberg promptly left, but later filed suit pursuant to 42 U.S.C. § 1983 against Roberts, the officers, and the department.

Plaintiffs sought nominal damages from Roberts and the officers, and an injunction to restrain defendants from enforcing Sec. 626.8 against plaintiffs’ anti-abortion speech activities. Plaintiffs also sought a declaration that Sec. 626.8 was unconstitutional as applied to them.

 Taylor determined that the individual defendants were entitled to qualified immunity, but declined to clarify the scope of the immunity, holding that the issue was moot. He granted summary judgment for all defendants and denied summary judgment for plaintiffs.

‘Serious Concern’

Writing for the appellate court, however, Judge Harry Pregerson expressed “serious concern” about the constitutionality of Sec. 626.8 as applied. No constitutional ruling was necessary, however, because California courts would construe the statute narrowly so as not to apply to plaintiffs’ conduct, he said.

He interpreted Sec. 626.8 as only applying to speech when the disruption caused by the speaker is caused by the manner of the speech. “Controversial words and images that, because of their content, upset the listener and cause the listener to behave disruptively are not covered by the statute,” he wrote.

Pregerson further noted there is no precedent for a “minors” exception to the constitutional prohibition on banning speech because of listeners’ reaction to its content.

It would be an “unprecedented departure from bedrock First Amendment principles to allow the government to restrict speech based on listener reaction simply because the listeners are children,” he wrote. “We decline to create such an exception.”

Nonetheless, Pregerson concluded the defendants had made a reasonable mistake in believing that Sec. 626.8 applied to plaintiffs’ conduct. He explained that the individual defendants were entitled to qualified immunity from First Amendment claims, but not from claims they detained the plaintiffs in violaiton of the Fourth Amendment.

“[N]either California Penal Code [Sec.] 626.8 nor the search for other code provisions that might have been violated justified the Deputy Sheriffs in detaining the Plaintiffs for seventy-five minutes while the sheriffs tried to find some basis for charging them,” Pregerson wrote.

Judges William A. Fletcher and Marsha S. Berzon joined Pregerson in his opinion.

The plaintiffs were represented by Robert J. Muise of the Thomas More Law Center, and James A. Hayes of Cummins & White LLP. The sheriff’s department and its deputies were represented by Los Angeles Deputy County Counsel Jennifer A.D. Lehman.

Roberts was represented by Julie Mullane, Gary Robert Gibeaut, Nancy Mahan-Lamb, and Lisa J. Brown of Gibeaut, Mahan & Briscoe.

The case is Center for Bio-Ethical Reform v. Los Angeles County Sheriff’s Department, 05-55294.


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