11th Circuit Court of Appeals (Jason Bennitt)
In a case rooted in abortion politics, a federal appeals court has upheld a 50-foot buffer zone excluding pickets near the Winter Park home of a Planned Parenthood executive.
But the U.S. Court of Appeals for the Eleventh Circuit also found the tony Orlando suburb’s 54-year-old anti-loitering law is too vague.
City Attorney Usher Larry Brown said officials are very happy with Thursday’s ruling.
“The ordinance passed in 2012 was completely upheld as far as the picketing portion goes, and that is the important part,” said Brown, a shareholder at Brown, Garganese, Weiss & D’Agresta in Orlando.
He said the city will tweak its anti-loitering law passed in 1960, which the three-judge panel struck down.
The city passed the buffer zone in 2012 after protesters targeted the home of Jenna Tosh, CEO of the Orlando chapter of Planned Parenthood. Officials said the ordinance was necessary because Tosh claimed she feared for her safety. The law required any pickets to stay at least 50 feet from the property line of any dwelling.
Three women—Winnifred Bell, Allura Lightfoot and Deanna Waller—filed a federal lawsuit a month after passage alleging the ordinance violated their right to express their Christian faith.
“Plaintiffs have no intent to harass, encourage violence or to express themselves in any way other than in a peaceful manner,” the suit stated.
Six-foot-tall signs carried by protesters showed aborted fetuses, and one said Tosh “kills babies and hurts women.”
The city argued the ordinance was facially constitutional because it is a content-neutral regulation of speech. U.S. District Judge Roy B. Dalton Jr. granted a motion for summary judgment in favor of Winter Park.
Judge Gerald Bard Tjoflat, writing for the unanimous appellate panel decision, noted the U.S. Supreme Court has found a content-neutral restriction of speech is constitutional if it “serves a significant government interest” and is “narrowly tailored” while leaving ample alternative avenues for speech.
Judge Peter Fay and Senior U.S. District Judge Arthur L. Alarcon from Los Angeles also were on the panel.
“The ordinance left open ample alternative channels for speech because protesters remained free to march through residential areas, to go door-to-door proselytizing their views and distribute literature,” Tjoflat wrote.
The women who brought suit were represented by attorney Frederick H. Nelson of the American Liberties Institute in Orlando. He did not return a phone call for comment by deadline.
Brown noted abortion and Planned Parenthood are controversial issues, but the ordinance was not targeted at any particular group or designed to protect Tosh in particular.
“I tell my conservative friends this ordinance is also designed to protect a wealthy executive from being picketed by Occupy Wall Street types,” he said.
The appellate court in its de novo review also examined Winter Park’s anti-loitering ordinance. Tjoflat said members of the panel “harbour serious concerns as to the constitutionality of the loitering provision.”
Tjoflat said it allows private citizens to control the speech on their property and allows police officers “unfettered discretion” on enforcement.
The U.S. Supreme Court has another abortion buffer case on its hands.
The court heard arguments in January on a challenge to a 2007 Massachusetts law mandating a 35-foot buffer zone around abortion clinics to keep protesters from approaching women seeking abortions. Some justices wondered if there were alternatives to address safety concerns and prevent abortion opponents from impeding access to clinics.
No ruling has been issued.