LEGAL ANALYSIS: Clinic Access (S. 4607)

By Donna Lieberman, Director, Reproductive Rights Project, and Miriam Spiro, Project Counsel INTRODUCTION S. 4607 provides criminal remedies for interference with access to health clinics, interference with religious worship and residential picketing. The bill does not contain any civil remedies. Health care providers and their clients do not have a private right of action under the bill, and local government officials are not authorized to initiate civil enforcement suits. Thus, health care professionals and their patients must continue to rely on federal law for civil injunctive relief and damages. Although the bill would probably survive constitutional scrutiny, it has several serious flaws.

• The ban on all targeted residential picketing, regardless of the context, nature or timing of the activity sweeps too broadly. It fails to balance important privacy interests with free expression. Reasonable time, place and manner restrictions on residential picketing would better accommodate these competing interests.
• The bill provides woefully inadequate remedies for reproductive health providers, their employees, families and patients. The bill’s exclusively criminal sanctions are entirely dependent on local law enforcement. Unfortunately, anti-choice District Attorneys and law enforcement personnel can vitiate the criminal sanctions by exercising their discretion and refusing to prosecute. The failure to provide for injunctive relief, or to provide for a civil proceeding by private individuals who are harmed by anti-choice violence, deprives reproductive health providers, patients and their families of a potent tool in state proceedings.
• The bill adds an unnecessary layer of punishment to already existing legislation that punishes interference with religious worship. There is no evidence that existing law has proven inadequate to protect religious freedom. Adding to the penalties for interference with religious worship is, therefore, gratuitous. By contrast, reproductive health care providers, their employees, patients and families are the targets of a tragically successful campaign of violence that has been inadequately addressed by existing law.

A. RESIDENTIAL PICKETING Unlike the clinic access bill, A. 0753, which passed in the Assembly earlier this year, S. 4607 specifically provides criminal penalties for picketing or demonstrating in front of a private residence. According to S. 4607, a person is guilty of picketing in front of a private residence in the second degree when he or she:

A person is guilty of picketing before a private residence in the first degree when he or she commits the offense of picketing in the second degree and has been convicted of that offense within the past five years. Picketing before a private residence in the second degree is a class A misdemeanor and picketing before a private residence in the first degree is a class E felony. It is unduly harsh to classify a conviction for residential picketing in the first degree as a class E felony. The proscription against residential picketing encompasses both peaceful expression and harassment. Ostensibly, a person could be convicted of residential picketing for quietly holding a sign in front of an individual’s private dwelling. If that person is convicted a second time for residential picketing within a five-year period, she or he could face up to four years in prison and/or up to a $5,000 fine. Such sanctions are disproportionate to the prohibited conduct. 1. The Bill’s Residential Picketing Provisions Do not Violate Federal or New York Constitutional Law A narrowly tailored ban against targeted residential picketing is not at odds with the First Amendment. The United States Supreme Court has held that it is constitutional to prohibit residential picketing that is focused solely on a single residence. Frisby v. Schultz, 487 U.S. 474, 483 (1988). However, in Frisby the Court was careful to note that the ordinance did not prohibit “general marching through residential neighborhoods, or even walking a route in front of an entire block of houses.” Id. The ordinance at issue banned picketing “before or about the residence or dwelling of any individual.” The Court upheld the ordinance because it was a narrow restriction, which preserved ample alternative channels of communication. Id. at 484. The Court reasoned that the government has a substantial and justifiable interest in protecting unwilling residential listeners and their quiet enjoyment of their homes. Id. 486, 487. Federal courts have applied the Supreme Court holding in Frisby differently. In Vittitow v. City of Upper Arlington, the Sixth Circuit Court of Appeals struck down as unconstitutional an ordinance that was identical to the ordinance upheld by the Supreme Court in Frisby. Vittitow v. City of Upper Arlington, 43 F.3d 1100, 1107 (6th Cir. 1995). Like the ordinance in Frisby and S. 4607, the ordinance in Vittitow prohibited picketing “before or about the residence or dwelling of any individual.” Id. at 1101. The Sixth Circuit construed the ordinance as a complete ban on residential picketing and therefore at odds with the ruling in Frisby. In justification for striking down an ordinance that was identical to the ordinance at issue in Frisby, the court reasoned that the Frisby ordinance was overbroad as written, and was saved only by counsel’s representations as to how the ordinance would be enforced. Id. at 1106. The court disagreed with the Supreme Court’s reliance on counsel’s representations, and refused to hypothesize as to how the ordinance might be enforced. Id. In Douglas v. Brownell, the Eighth Circuit Court of Appeals declined to apply the Sixth Circuit’s analysis. Douglas v. Brownell, 88 F.3d 1511, 1520 (8th Cir. 1996). In Douglas, the ordinance at issue prohibited picketing “before, about, or immediately adjacent to, the residence or dwelling of any individual.” Id. at 1513. Unlike the Sixth Circuit in Vittitow, the court did not read the language of the ordinance to be a complete ban on residential picketing. Id. at 1520. The protesters argued that because the ban was not limited to prohibiting protesting solely in front of a residence, it was overbroad and unconstitutional. Id. at 1518. The court rejected this argument, and reasoned that the Supreme Court holding in Frisby does not establish a rule that picketing may only be prohibited directly in front of a targeted residence. Id. at 1519. Thus, the court upheld the ordinance as a constitutional and narrowly tailored ban on targeted picketing. Id. at 1521. Like the ordinances in Frisby and Douglas, S. 4607 prohibits targeted picketing “before or about the residence or dwelling place of any individual.” The bill provides an exception for residences that contain within them the principal place of business of any individual residing in the residence. The bill also specifically states: “nothing in this act shall be construed to prohibit any expressive conduct, including peaceful picketing or other peaceful demonstration protected from legal prohibition by the constitution of the United States and the constitution of the state of New York.” Thus, protestors may march through residential areas and hand out leaflets. What they may not do is settle in front of a particular household in order to protest against the occupant thereof The bill also shares the same legislative intent as the ordinances that were upheld by the United States Supreme Court and the Eighth Circuit Court of Appeals: protecting an unwilling listener’s peace, tranquility and privacy in his or her home. Thus, according to the reasoning of the United States Supreme Court, S. 4607 is a constitutionally sound means of limiting residential picketing. The New York constitution generally requires a stricter analysis of speech related prohibitions than the federal constitution. However, New York’s highest court has adopted the United States Supreme Court’s “public forum doctrine” for purposes of analyzing speech that takes place on property that traditionally or by designation has been opened up for public expression. See Rogers v. New York City Transit Authority, 657 N.Y.S.2d 871, 874 (1997). The United States Supreme Court considers a residential sidewalk to be a public forum. Thus, although New York’s highest court has not yet ruled on the constitutionality of an ordinance against targeted residential picketing, it appears that such an ordinance would be upheld. 2. S. 4607 Unnecessarily Limits Free Speech Residential picketing is a legitimate form of expression, and sometimes, may be the only effective setting for a demonstration. For example, it may be impossible to picket a slumlord who has no principal place of business unless the picket can take place outside of his or her residence. The legislature can balance free speech and privacy interests by setting narrow time, place and manner restrictions on residential picketing. Rather than ban all targeted residential picketing, the legislature can regulate the number of residential picketers, the hours during which a residential picket may take place, and the noise level of a residential picket. In that regard, a person who peacefully holds a sign in front of a residence during limited hours would not be subjected to the harsh criminal penalties now proposed by S. 4607. Moreover, if S. 4607 is amended with reasonable time, place and manner restrictions, the bill will be less vulnerable to constitutional challenges when it is enforced. B. ACCESS TO HEALTH SERVICES AND RELIGIOUS WORSHIP S. 4607 defines its terms with respect to interference with clinic access and religious worship in substantially the same manner as the “Freedom of Access to Clinic Entrances Act of 1994”, codified as Chapter 13 of Title 18 of the United States Code (“FACE”). According to the bill a person would be guilty of criminal interference with health care services when she or he:

A person is guilty of criminal interference with places of religious worship when she or he:

The bill also provides criminal sanctions for intentionally damaging or destroying the property of a health facility or place of religious worship. Interference with freedom of access to health services or places of religious worship in the second degree is a class A misdemeanor, and interference in the first degree is a class E felony. 1. The Bill Provides Duplicative Criminal Sanctions for Interference with Places of Religious Worship. S. 4607 should be limited to protecting access to health care services. New York already has two criminal statutes that punish interference with religious freedom and damage to religious institutions. N.Y. Penal Law (“PL”) § 240.21 makes disruption of a religious services an “A misdemeanor” and P.L. § 240.31 makes it an “E felony” to damage property used for a broad range of religious purposes. There is no evidence that these laws are inadequate to protect religious freedom or that the free exercise of religion is undermined by a pattern of intimidation and harassment. By contrast, reproductive health providers in New York must seek the protection of federal marshals and wear bulletproof vests to work. Yet, no state law currently singles out health care, its providers or its recipients for protection. Moreover, current law has repeatedly proven inadequate to protect reproductive health care facilities and their providers, like Dr. Barnett Slepian. 2. Criminal Sanctions for Interference with Access to Health Care Facilities do not Violate the First Amendment or the New York Constitution. S. 4607’s prohibition against interference with access to health care facilities does not penalize activity that is protected by the First Amendment. Nor does the bill encompass activity that is protected by Article One, Section Eight of the New York Constitution. Anti-abortion activists, like all citizens espousing any cause, are properly protected by the First Amendment when they speak, march, demonstrate, pray or associate with others in expressive behavior. Yet, such activities do not insulate unprotected conduct from criminal sanctions. The bill proscribes interference with the constitutional right to reproductive health services. It states that “‘interference with’ means to restrict a person’s freedom of movement.” Neither the Federal nor the New York Constitution protects activity that physically blocks or obstructs reasonable access to clinics. Such conduct constitutes a tort and a crime, regardless of whether those blocking a healthcare facility sing, chant, pray, or otherwise express themselves during their blockade. There is a distinction between unwanted or annoying speech and speech that is truly harassing. Those who are targeted by protestors may perceive much speech that is properly protected by the First Amendment as harassment, but not all speech directed at an unwilling listener is protected. Any bill in which words are at the crux of the offense raises free speech concerns. It can be difficult to differentiate between protected and unprotected speech, and a context-based analysis needs to take place on a case by case basis. Terms like “harassment” and “intimidation” define conduct that may properly be proscribed. In fact, harassment and menacing are forbidden by New York’s penal code. For example, telephone calls or letters that make individualized threats of violence are proscribable even though words are used. However, whether conduct falls within the definition of “harassment” or “intimidation” must be evaluated carefully. Genuine threats are not protected speech under the First Amendment or the New York Constitution. See e.g. Madsen v. Women’s Health Center, Inc., 512 U.S. 753, 773-74 (1994)(“threats to patients or their families, however communicated, are proscribable under the First Amendment,” as is speech that “is so infused with violence as to be indistinguishable from a threat of physical harm”)(citation omitted); R.A.V. v. City of St. Paul, 505 U.S. 377, 388 (1992)(“threats of violence are outside the First Amendment . . . [in order to protect] individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur”); NAACP v. Clairborne Hardware, 458 U.S. 886, 926 (1982)(“[individuals] engaged in violence or threats of violence . . . . may be held responsible for the injuries that they cause[]”); People v. Deitz, 75 N.Y.2d 47, 550 N.Y.S.2d 595 (1989)(finding that “genuine threats of physical harm fall within the scope of [New York’s criminal harassment] statute” but abusive or obscene language without more is constitutionally protected expression). Significantly, the bill is written to ensure that only “true” threats would be actionable under the law, and that such threats would be contextualized and evaluated on a case by case basis. S. 4607, like FACE, requires both an objective and a subjective analysis in each case to determine whether a violation has occurred. The objective test requires that the listener reasonably interpret the statement, in light of its relevant context, as a threat. A violation occurs only if a person is placed “in reasonable apprehension of bodily harm to himself or herself or to another.” Thus, the threat must be directed at a specific and identifiable victim, who reasonably interpreted the speech or expression as a statement of intention to harm him/her. Under a subjective test, the bill imposes liability only upon a person who “intentionally intimidates or interferes with” another person. The speaker must specifically intend that his/her statement be understood by the listener as communicating an intent to inflict or cause harm. Requiring an intent to intimidate minimizes the risk of punishing a speaker who only intended to communicate an idea using protected speech. See U.S. v. Gilbert, 813 F.2d 1523 (9th Cir. 1987)(finding that the Fair Housing Act’s “requirement of intent to intimidate serves to insulate the statute from unconstitutional application to protected speech”).

3. FACE Has Been Consistently Upheld as Constitutional by Federal Courts and S. 4607’s Definition of Criminal Interference is Substantially the Same as FACE’s Definition. S. 4607’s proscriptions against interference with health care and religious worship are modeled after FACE, and federal courts have consistently held that FACE does not violate the First Amendment. American Life League, Inc. v. Reno, 47 F.3d 642, 645 (4th Cir. 1995)(“the Act does not violate the First Amendment’s Free Speech Clause”); Cheffer v. Reno, 55 F.3d 1517, 1521 (11th Cir. 1995)(“the Access Act is not content or viewpoint based, is not unconstitutionally vague or overbroad, and does not violate appellants’ First Amendment rights”); U.S. v. Weslin, 1998 WL 537941, *3 (2d Cir. 1998)(holding that “FACE is not a viewpoint or content-based regulation” and therefore, does not violate the First Amendment). In American Life League, Inc. v. Reno, 47 F.3d at 645, abortion opponents claimed that FACE violated the Constitution and their free speech rights. In denying their challenge, the court reasoned that: [T]he Act does not prohibit peaceful protestors from praying, chanting, counseling, carrying signs, distributing handbills, or otherwise expressing their opposition to abortion. What the Act does prohibit is force, the threat of force, and physical obstruction, when carried out because a person is using or providing reproductive health services. Id. at 650. Likewise, S. 4607 does not prohibit peaceful protest or lawful assembly before health care facilities. The bill solely prohibits protestors from physically obstructing clinics or intentionally placing health providers or women who seek their services in reasonable fear or apprehension of bodily harm. As explained above and reiterated in American Life League, Inc., such obstructive conduct is not constitutionally protected. .Id. at 652. In addition, the court in American Life League, Inc. specifically found that the definitions of “interfere with” and “intimidate” in FACE were narrowly tailored, and “should inform those opposed to abortion that they will not offend this law by peaceful, non-obstructive picketing.” The bill contains the same definitions of “interfere with” and “intimidate” as FACE; thus, there can be no doubt that these definitions do not run afoul of the First Amendment. CONCLUSION For all of the foregoing reasons, S. 4607 is likely to survive constitutional scrutiny. However, the bill is seriously flawed in that it fails to provide civil remedies, needlessly limits speech, and penalizes conduct that is already prohibited by New York’s penal code.