Hirsh v. City of Atlanta , 261 Ga. 22 ( 1991 )

Fletcher, Justice,

dissenting.

As the majority and the parties below point out, the conduct of some of the demonstrators was clearly illegal and not protected by the First Amendment; the conduct of others involved only peaceful picketing, conduct which is protected by the First Amendment. The majority opinion details the inadequacies of the criminal justice system in addressing and preventing illegal and unprotected conduct of some demonstrators.⁶ In my opinion, the entanglement of illegal and legal conduct in this case has resulted in an injunction that is overbroad.

The trial court has attempted to fashion a civil remedy which will eliminate the criminal conduct of the demonstrators. However, the injunction also curtails non-consensual, peaceful activities traditionally associated with protests, and, as a result, runs afoul of the First Amendment. The injunction restricts peaceful picketing, leafletting, displaying of signs and verbal communication of beliefs to an area at least 50 feet from the property line of any abortion facility.

It is undisputed that, as a general proposition, “peaceful picketing and leafletting are expressive activities involving ‘speech’ protected by the First Amendment.” United States v. Grace, 461 U. S. 171, 176 (103 SC 1702, 75 LE2d 736) (1983). I cannot agree with the majority’s conclusion that the injunction is tailored narrowly enough to protect First Amendment interests. The majority points out that

[w]ithin the “free zone” and the area surrounding the parking lot, no one on the public streets or sidewalks may distribute a leaflet, display a sign, or engage in oral protest, education, or counseling with another person from within 5 feet of the second person without the consent of the second person.

Majority p. 26. I agree with the majority that this procedure will prevent swarming, jostling and yelling by the protestors. It will also deny the protestors their right to free speech in that the injunction infringes on virtually all non-consensual contact with the public.

I would also note that the portion of the injunction restricting the protestors to zones 50 feet away from any property line of any facility at which abortions are performed, or any parking lots used by patients, employees, medical practitioners and invitees of such facilities, is not a “regulation of . . . place . . . narrowly tailored to serve a significant government interest.” Perry Ed. Assn. v. Perry Local Ed. Assn., 460 U. S. 37, 45 (103 SC 948, 74 LE2d 794) (1983). Many streets together with the public sidewalks that abut them lie within rights-of-way that are 50 feet or less in width. With no public property lying within a reasonable distance of the entrances to the facilities on which they are now permitted to protest, does not this injunction deprive peaceful protestors of a public forum in which to exercise their rights of free speech? The overly broad restrictions contained in the injunction have resulted in displacement of the protestors to areas in which no effective exercise of their First Amendment rights can be made.

The geographic restrictions on the demonstrators in this case are far greater than in any of the cases cited by the majority. In Portland Feminist Women’s Health Ctr. v. Advocates for Life, Inc., 859 F2d 681 (9th Cir. 1988), the demonstrators engaged in much of the same criminal conduct that is present in this case. However, in a narrowly tailored order, the trial court enjoined “obstructing the free and direct passage of any person” into the abortion facility, and demonstrating or distributing literature “in a rectangular zone that extends from the'Center’s front door to the curb and twelve and one-half feet on either side of a line from the middle of the Center’s door to the curb.” Id. at 684. In N. Y. State NOW v. Terry, 886 F2d 1339, 1345 (2nd Cir. 1989), the trial court only enjoined demonstrators from certain aspects of sidewalk counseling and from “trespassing on, blocking or obstructing ingress into or egress from any facility at which abortions are performed.”

Decided March 15, 1991. Jay Alan Sekulow, for appellants. Marva Jones Brooks, Joe M. Harris, Jr., Bruce P. Johnson, Michael L. Smith, Alan I. Begner, Yolanda F. Williams, for appellees.

Because I would hold that the injunction in the case before us is overbroad, I respectfully dissent to the majority opinion. I am authorized to state that Presiding Justice Smith joins in this dissent.