SAN DIEGO (CN) — A federal judge ruled on Friday that an anti-abortion activist can’t claim a San Diego law mandating protesters stand eight feet away from certain buildings violates his First Amendment right to freedom of expression because the city can protect people entering and exiting health care facilities from being harassed and intimidated.
In his complaint filed last year in San Diego federal court, Roger Lopez described himself as a “sidewalk counselor” who has offered a sympathetic ear and pamphlets discussing pregnancy and childcare resources to people outside of downtown San Diego’s Planned Parenthood clinic for 15 years.
In June 2024, San Diego updated a 1997 ordinance that created “buffer zones” extending 100 feet away from the entrances and exits of schools, medical facilities and religious institutions.
In those buffer zones, demonstrators can’t approach people entering and exiting the buildings within eight feet to talk to them or hand them leaflets or literature unless they have the consent of the person they’re approaching.
Lopez sued the city, claiming the City Council amended the law to specifically stifle the speech of anti-abortionists and as revenge for the Supreme Court’s overturning of the constitutional right to abortion in the Dobbs decision in 2022.
In its motion to dismiss, the city argued that the law was modeled after a similar Colorado law that was at the center of a similar lawsuit called Hill v. Colorado. The suit made it all the way up to the Supreme Court, where justices ruled in 2000 that the state’s law did not violate the First Amendment as long as it didn’t target a specific viewpoint, allowed for some specific distance from which protesters can demonstrate and communicate their ideas, and as long as they could demonstrate it had a compelling interest to enact the law.
“Plaintiff has failed to allege sufficient facts in the complaint to depart from the Supreme Court’s holding in Hill, which recognized a governmental interest in protecting individuals attempting to access covered facilities,” wrote U.S. District Judge Linda Lopez, a Joe Biden appointee, in her order granting San Diego’s motion to dismiss the case.
Not only were the laws and even the plaintiffs in the Hill case similar, but the zones Colorado enacted around health care facilities and other protected spaces are nearly identical in size to San Diego’s, Judge Lopez added. The only substantial difference is that San Diego has a stricter noise restriction. That restriction is “constitutionally insignificant and remain[s] consistent with the principles of time, place, and manner regulations,” she added.
Roger Lopez can’t cure the problems in his complaint because of the “binding precedent of Hill,” Judge Lopez added, which would make granting him leave to amend it futile.
Roger Lopez tried to argue that Hill isn’t valid anymore since it’s rarely cited in Supreme Court cases and conservative justices have taken swipes at it in their opinions.
Judge Lopez dismissed that argument, showing it was cited in a Supreme Court case called McCullen v. Coakley.
“The Supreme Court’s statement in McCullen regarding the Hill decision indicates that it was aware of it, cited it, did not overturn it, and that it remains good law,” she wrote.
Even if the plaintiff’s claims of the San Diego City Council passed the law aimed to suppress anti-abortionist speech, the Supreme Court ruled in Hill that a law isn’t viewpoint biased — meaning it targets and restricts the speech of people who hold a specific opinion — “simply because its enactment was motivated by the conduct of partisans on one side of a debate,” Judge Lopez added. “In Hill, the court still found the statute to be content neutral even though the legislative record revealed that the statute was passed primarily to address pro-life speech outside abortion clinics.”
Instead, she added, San Diego’s ordinance is applied to everyone in the 100-foot zones around schools, medical facilities and religious institutions, regardless of their viewpoint.
Attorneys for both Roger Lopez and San Diego did not immediately respond to requests for comment.