(CN) — An anti-abortion activist hit a roadblock Wednesday in a constitutional challenge to a San Diego ordinance that enforces a buffer zone between protestors and certain public buildings when a federal judge denied the activist’s motion for a preliminary injunction.
“The ordinance does not burden more speech than necessary to serve its goals,” U.S. District Judge Gonzalo P. Curiel wrote in a 16-page order.
The ordinance in question established 100-foot buffer zones extending from the entrances and exits of schools, medical facilities and religious institutions. In addition, the law bans demonstrators from approaching people entering or exiting buildings within eight feet unless they were given consent by the person they are approaching.
Dan Blythe, a California anti-abortion activist, sued the city in November. The ordinance prevents Blythe and other activists from distributing literature to high school students on public sidewalks as they leave school, which Blythe argues violates his First and Fourteenth Amendment rights to free speech and demonstrate.
After a preliminary injunction hearing in early January, Curiel concluded Blythe had not shown a likelihood of success on the merits of his claims.
“The court is not convinced by plaintiff’s attempt to create a content-based distinction in the ordinance by distinguishing between the core First Amendment activities restricted in the ordinance and everyday conversation,” the judge wrote in Wednesday’s order.
Curiel rejected Blythe’s argument that the ordinance was content-based, finding that it only applies to leafletting, displaying signs and oral protest, rather than restricting topics or messages.
“That the ordinance does not prohibit friendly conversation about school assignments or weekend plans does not make it content-based,” he wrote. “This is a distinction between different broad categories of communication, between protesting and friendly conversation, between educating a stranger and catching up with a friend.”
The Barack Obama appointee further concluded that the ordinance is narrowly tailored to advance the city’s interest in protecting students at school.
Curiel pointed to the Supreme Court’s 2000 ruling in Hill v. Colorado, in which the court found that a Colorado law restricting protests in front of healthcare facilities did not violate the First Amendment, to undercut many of Blythe’s arguments.
“The Supreme Court’s reasoning in Hill is on point here,” the judge wrote. “The court there found that eight feet of separation will not impact readers’ ability to read signs; if anything, it will aid their ability to read signs ‘by preventing others from surrounding them and impeding their view.’”
He was unconvinced by Blythe’s argument that no findings justify extending the decision in Hill to schools, pointing to city-supplied reports indicating demonstrations had in fact disrupted school activities.
“In all, the city considered various sources in deciding that these restrictions are necessary near its schools,” Curiel wrote.
The ordinance doesn’t outright ban any form of protected speech, he found.
“Demonstrators will be able to communicate their messages and otherwise engage in protected speech, they will merely be unable to lengthen interactions with unwilling listeners by remaining within eight feet of them without their consent as they enter and exit school,” he wrote.
Curiel said that allowing it otherwise may disrupt school activities.
The judge noted Blythe had correctly pointed out that the ordinance covers many organizations but turned again to the Supreme Court’s decision in Hill, in which the court rejected a similar argument.
“By restricting protected speech in a constitutionally reasonable fashion, the ordinance cannot be said to be overbroad,” Curiel wrote.
In an email to Courthouse News, Blythe’s attorney Mike Miller said he respectfully disagrees with the court’s ruling.
“Mr Blythe’s peaceful leafleting to students leaving school poses no disruptive threats to the school environment,” Miller said. “The case will continue and we believe he and the First Amendment rights of other Californians will prevail in the end.”
The San Diego City Attorney’s Office declined to comment on pending litigation.