City’s Restriction on Leafleting, Speech at Schools Is Valid

Tuesday, September 15, 2026

Page 3

U.S. District Court:

City’s Restriction on Leafleting, Speech at Schools Is Valid

Judge Says San Diego Has Interest in Protecting Students From Harassment

By a MetNews Staff Writer

A pro-life advocate has failed in his effort to persuade a judge of the U.S. District Court for the Southern District of California that his First Amendment rights are trammeled by a San Diego city ordinance that bars the distribution of literature to, or conversing with, students entering or exiting high school buildings without their consent.

Although the ordinance is broader in scope than that, the particular objective of plaintiff Don Blythe is to make contact with teenage pupils. Thwarted by an order issued Friday, a notice of appeal to the Ninth U.S. Circuit Court of Appeals was filed by his lawyers that same day.

The ordinance, enacted on June 11, 2024, says, in part:

“(c) Consent Required. Within a radius of 100 feet of a health care facility, place of worship, or school grounds, unless the person or motor vehicle occupant consents, no person shall:

“(1) knowingly and willfully approach within eight feet of a person in the public right-of-way or sidewalk area who is seeking to enter or exit a health care facility, place of worship, or school grounds, to:

“(i) pass a leaflet or handbill to that person;

“(ii) display a sign to that person;

“(iii) engage in oral protest, education, or counseling.”

Summary Judgment

District Court Judge Gonzalo P. Curiel on Friday denied Blythe’s motion for summary judgment and granted that put forth by San Diego, saying:

“[T]he Court concludes that the Ordinance is constitutional as applied to Plaintiffs expressive conduct. The law passes intermediate scrutiny—it (1) advances a significant government interest; (2) is narrowly tailored to serve that interest; (3) 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.”

He noted that the ordinance is similar to one approved by the U.S. Supreme Court in its 2000 decision in Hill v. Colorado. That ordinance restricted contact only with persons entering or exiting health care facilities while the San Diego provision extends to schools and places of worship.

City’s Interest

“The key question in this case is whether the City has shown that the Ordinance furthers its asserted interest,” Curiel said in his ruling. He declared:

“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….Rather, an interest in safe access to schools inherently includes an interest in maintaining safe and orderly entry and exit conditions. Accordingly, the Court… concludes that the City’s interest in protecting students while entering and exiting schools—including protecting them from harassment, intimidation, and obstruction—is significant.”

Curiel said that Blythe’s own statements support the city’s position that the ordinance is needed to protect students. Reciting Blythe’s position, before contesting disputing it, he wrote:

“When describing the specific activity Plaintiff seeks to engage in, Plaintiff acknowledged that he hopes to approach and speak to students leaving schools at dismissal who are ‘walking in clusters, often in quick succession with little space or time in between.’…Plaintiff argues that the consent exchange required by the Ordinance would be impracticable, because ‘it is difficult for a student to simultaneously stay in the mobile group and also engage in a brief conversation to give consent without either leaving the group or impeding the entire group’s progress which blocks traffic.’…Plaintiff asserts that these challenges arise only because of the Ordinance’s consent exchange requirement.”

The judge continued:

“However, common sense dictates that the same obstruction concerns that Plaintiff attributes to the consent exchange apply equally to Plaintiffs own proposed activity of closely approaching individual students—who are walking in groups and in quick succession—to proffer a leaflet. Consequently, Plaintiffs own discovery responses and common sense support the City’s proffered justification for the Ordinance.”

‘Common Sense’

He commented:

“[C]ommon sense demands that the Court review the Ordinance with an appreciation for the times in which we live. 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….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 protestors’ ability to closely approach students entering and exiting schools without consent.”

Addressing the question of whether the ordinance is sufficiently narrowly tailored to achieve its objective, the judge said:

“The Ordinance narrowly limits Plaintiffs capacity to knowingly approach individuals entering and exiting schools without consent. This limitation on only unconsented close approaches directly bears on the government’s interest in protecting students from harassment, intimidation, and obstruction outside schools. Further, it does not burden Plaintiffs speech beyond the act of approaching without consent. The Ordinance leaves Plaintiff free to stand within 100 feet of schools, display signs, pass leaflets, and speak to students. Accordingly, the Court finds that the City’s interest would be advanced less effectively without the Ordinance and that the Ordinance does not burden substantially more speech than necessary.”

Alternate channels of communication remain, Curiel said, pointing out:

“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….Therefore, even accepting Plaintiffs 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.”

The case is Blythe v. City of San Diego, 24-CV-02211.

Lawyer Predicts Reversal

Attorney Michael Millen, whose office is in Santa Clara County’s City of Los Gatos, represented Blythe. He commented:

“While the court’s adverse ruling will result in additional delay, we are confident that the 9th Cir. Court of Appeals will find the City of San Diego’s restrictions on leafleting an unjustified and unconstitutional infringement on free speech.”

Mullen’s co-counsel, Catherine W. Short of Ojai, vice president of legal affairs for the Life Legal Defense Foundation, remarked:

“The ease with which the district court approved a restriction on the core First Amendment activity of hand-to-hand leafleting, in the face of the city’s admitted lack of evidence of any disruption caused by such activity outside high schools, should be of great concern to anyone who respects free speech. The court’s supposedly ‘common sense’ reasons, if let stand, could justify similar curtailing of leafleting at any place and any time.”